Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 12 - Evidence for February 21, 2012
OTTAWA, Tuesday, February 21, 2012
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-10, An Act to enact the Justice for Victims of Terrorism Act and to amend the State Immunity Act, the Criminal Code, the Controlled Drugs and Substances Act, the Corrections and Conditional Release Act, the Youth Criminal Justice Act, the Immigration and Refugee Protection Act and other Acts, met this day at 8:32 a.m. to give consideration to the bill.
Senator John D. Wallace (Chair) in the chair.
The Chair: Good morning, colleagues. I am John Wallace, a senator from New Brunswick, and I am chair of the Standing Senate Committee on Legal and Constitutional Affairs. Today we continue our detailed consideration and study of Bill C-10, the safe streets and communities act.
The portion of Bill C-10 that we will be considering today is Part 2. In very brief summary, Part 2 of Bill C-10 proposes to amend the Criminal Code to increase or impose new mandatory minimum sentences for certain sexual offences against young people, as well as increasing mandatory penalties.
This bill creates two new offences, namely, those of making sexually explicit material available to a child and of agreeing or arranging to commit a sexual offence against a child. This bill will also expand the list of specific conditions that may be added to prohibition and recognizance orders to include prohibitions concerning contact with a person under the age of 16 and use of the Internet or other digital network, and expand the list of enumerated offences that may give rise to such orders and prohibitions.
I am very pleased to welcome with us today a number of individuals as part of this first panel. From the Royal Canadian Mounted Police, we have Superintendent John Bilinski, who is the Officer in Charge of the Canadian Police Centre for Missing and Exploited Children; and Officer Jackie Basque, from the National Child Exploitation Coordination Centre. From the Ontario Provincial Police, we have Detective Inspector Scott Naylor. From Parents- Secours du Québec, we have its Director General, Mr. Pierre Chalifoux. From the organization Beyond Borders, we have Mr. David Matas, who is the Legal Team Member.
Good morning to you all.
I will begin with Superintendent Bilinski. I understand you have an opening statement that you wish to make.
Superintendent John Bilinski, Officer in Charge, Canadian Police Centre for Missing and Exploited Children, Royal Canadian Mounted Police: Thank you for the opportunity to provide an overview of the work that Canadian and international law enforcement are doing to combat the serious problem of child sexual exploitation.
As mentioned, I am Superintendent John Bilinski, Officer in Charge of the Canadian Police Centre for Missing and Exploited Children. Joining me today is Sergeant Jackie Basque from the National Child Exploitation Coordination Centre, Operations Unit.
Thank you for the opportunity to provide an overview of the work that Canadian and international law enforcement are doing to combat the serious problem of child sexual exploitation.
I am superintendent John Bilinski and the officer in charge of the Canadian Police Centre for Missing and Exploited Children. Sexual exploitation of children is unfortunately not necessarily a new phenomenon. However, advances in technology and specifically the increase in use of the Internet create opportunities for those who seek to exploit children for sexual purposes. This abuse includes Canadians who view images of the sexual abuse, collect it, trade it and at times manufacture it for commercial use. Some even go to lengths in travelling to other countries to practise the "hands on " sexual abuse of children.
The Canadian Police Centre for Missing and Exploited Children was created in response to an ever-increasing concern about the safety of children. The centre is composed of two distinct but linked components that strive to ensure the safety of children in Canada and abroad: the National Child Exploitation Coordination Centre and the National Centre for Missing Persons and Unidentified Remains.
The National Child Exploitation Coordination Centre, or the NCECC, as we refer to it, was established in 2003 as the law enforcement component of Canada's National Strategy to Protect Children from Sexual Exploitation on the Internet.
The NCECC mandate is to reduce the vulnerability of children to Internet-facilitated sexual exploitation by identifying victimized children; investigating and assisting in the prosecution of sexual offenders; and strengthening the capacity of police agencies at all levels through training and investigative support.
The NCECC is a partner of the provincial Integrated Child Exploitation units across Canada, otherwise known as ICE. The national strategy has permitted Canadian law enforcement and its NGO and government partners to make significant progress in our response to IT-enabled child sexual exploitation. We have ICE units from coast to coast and now have trained investigators in every province and territory. We continue to develop new and innovative training courses, which will support the efforts of investigators across Canada and around the world. We have come to realize and understand that there is significant value in sharing our expertise and assisting our international partners in being as best equipped as possible to fight online sexual abuse of children.
Many of you may recall Project Salvo, a nationally coordinated child pornography investigation. Project Salvo clearly demonstrated the police presence and effectiveness across the country as offenders were arrested and charged in connection to online sexual exploitation of children in almost every province and territory. One of our most important roles as a national centre is in adding value to intelligence received and forwarding it to the appropriate law enforcement jurisdiction.
We have recently completed a study called Project Sunrise. This project examined suspected Canadian citizens who travel internationally searching for safe havens where they may abuse children. As we speak, the intelligence gathered during Project Sunrise is being analyzed and shared with our partners with the goal of developing a national strategy to combat the practices of Canadian travelling sex offenders.
Reports are received from several agencies, including Cybertip, Canadian police agencies, the public and also through our international partnerships. We provide investigators and an investigational package that includes value- added information such as administrative subpoena results, the account holder, open source intelligence and research analysis, and we also provide a multitude of services to assist the agency in their investigation.
The Canadian Police Centre for Missing and Exploited Children, CPCMEC, has stayed true to its early conception as being an integrated unit. We rely on the expertise of embedded subject matter experts from several police services to complement our efforts. As a founding member of the Virtual Global Taskforce, the CPCMEC continues to represent Canada's policing community within this international police alliance dedicated to combating child sexual exploitation.
When we hear stories of children identified by law enforcement — indeed one of our most essential roles — we see how important collaboration is — it is often the culmination of efforts of many officers that result in the identification of a child.
Our Victim Identification Unit at the CPCMEC is continually gaining strength and recognition as an international best practice. The VI unit is responsible for collecting images that have been seized from across the country and the world and for beginning the process of image analysis with the objective of identifying the victims.
We are at this moment working on a project with Interpol that will permit child identification technology created by Canadians to be shared on a global basis. The international VI efforts have resulted in 2,511 identified and rescued victims thus far. Without these efforts by law enforcement, the children would remain unidentified and remain in sexually abusive environments. Of that 2,511 worldwide number, 283 were Canadian children who have now been identified and rescued. The average age of these Canadian victims was 12 years.
We will be advancing our efforts, and we will be directing our attention to ensuring that the services we offer, research, technology and training, continue to reflect the changing needs of the Canadian policing community.
Thank you for this opportunity to speak to you today. The police, both in our own communities and internationally, are working together. We have specialized training, technological experts and very committed people, and we are making progress. We must keep in mind that child sexual exploitation is not only a police issue. Rather, it is a societal issue that requires the commitment of multiple agencies from various sectors to address.
Thank you once again for this opportunity to speak to your committee today.
The Chair: Officer Basque, are you adding to the opening statement?
Officer Jackie Basque, National Child Exploitation Coordination Centre, Royal Canadian Mounted Police: No, I am not.
Senator Angus: On a point of clarification, you mentioned some letters, NCECC, and then said it is called "ICE. " Did I hear you correctly, ICE?
Mr. Bilinski: You did. It is Integrated Child Exploitation.
Senator Angus: Thank you.
Scott Naylor, Detective Inspector, Ontario Provincial Police: I appreciate the opportunity to provide information to the committee on this bill as it pertains to the investigation of child sexual abuse and exploitation on the Internet. Our most fundamental responsibility as a society is to protect our children from those who would do them harm. Child sexual exploitation on the Internet is child abuse, plain and simple.
Every depiction of a child being abused through videos and photos that is seen downloaded or shared through peer- to-peer networks and servers represents re-victimization of that child. All Ontario police services take this matter very seriously and coordinate our limited resources to protect children from online predators. Members of the OPP- coordinated Provincial Strategy to Protect Children from Sexual Abuse and Exploitation on the Internet have laid thousands of charges over the years through coordinated investigation of child sexual abuse, less accurately but commonly known as child pornography.
You may be aware that earlier this month 60 individuals from a range of ages, backgrounds and Ontario communities, both urban and rural, were charged with more than 200 offences relating to child pornography. It is important to note that three of these accused cannot be identified under the Youth Criminal Justice Act.
Tremendous dedication, collaboration and hard work are required in order to coordinate such investigations. During the three months prior to those charges, nearly 9,000 individual Internet protocol or IP addresses were identified as accessing and trading child pornography in Ontario alone. To put that into context, we made just 60 arrests. However, I prefer to look at the positives of February 2. That day, 22 children were no longer being abused who were being abused the day before. If the bill we are speaking about today had two additional offences already in place, namely luring and communicating to procure, we may have been able to save more children.
This investigation was at times time consuming and cumbersome and protected the identities of child predators and the material that they produced. Thanks to recent legislation, Internet service providers, ISPs, whose own national association we want to say view us, the police, as partners, have a legislated duty to report when their services are being used for child abuse-related purposes.
We are still seeking a means to reduce the complexity and inherent costs of these huge investigations. Current processes include serving Internet service providers with search warrants, production orders and law enforcement requests for subscriber information relating to particular Internet protocol IP addresses. What we seek I can liken to using a licence plate called in about a dangerous or drunk driver to the police as a tip.
As has been demonstrated by police across North America and around the world, we are making progress in combating Internet child luring and sexual exploitation through great police work and information sharing, greater public awareness through our partnerships with third-party agencies such as Cybertip and the Canadian Centre for Child Protection and being equipped with ever-improving legislative tools that need to be updated and modernized to keep up with our ever-emerging online society.
I would like to illustrate my points with a couple of items arising from studies conducted in 2011 by award-winning researchers on staff at the OPP using Statistics Canada 2010 information. In 2009, 88 per cent of sexual assault victim cases were not reported to police according to adults surveyed. Children are far less likely to report these offences, likely until later in life if at all. Also, child pornography offenders target victims they know. About 59 per cent were acquaintances; 43 per cent had familiar relationships.
There is an increasing public and professional concern about Internet-related sexual offending, including the use of Internet technologies to access and to distribute child pornography. This concern parallels an increase in the number of child pornography cases faced by police, other criminal justice professionals and clinicians. The key concern for many is the likelihood that someone who has access to or collects child pornography will go on to directly sexual assault a child. This is also referred to as off-line offending.
This concern is paramount for professionals who are tasked with a variety of duties, including investigating these offences, providing assessments of risk or bail in sentencing, correctional intake assessments and treating, planning and creating supervision plans for offenders on a variety of forms of releases. Unless police are provided with the tools to proactively investigate online predators through IP addresses, supported with current and updated legislation, this trend will likely continue.
I am not going to speak to the effectiveness of the mandatory sentencing aspect of this bill directly as it is beyond the scope of our mandate. What I can tell you is that our studies on recidivism indicate that over 10 per cent of these people convicted of child pornography offences alone went on to face more sex-related charges within four years of their release. About 30 per cent of those charged had been charged previously with offences against children; 24 per cent breached conditions of release by being alone with a child, accessing the Internet or contacting children, or downloading child pornography.
I can account first-hand that, as a result of the recent Provincial Strategy to Protect Children from Sexual Abuse and Exploitation on the Internet investigation, which successfully rescued 22 children, the online police tools and investigative techniques revealed that for a 72-hour period following a media release, the number of Internet protocol addresses downloading child pornography in Ontario significantly decreased.
I believe that this significant but short decrease in downloading activity is a direct result of those like-minded individuals experiencing fear of getting caught committing this criminal activity. Increasing mandatory sentencing for these specified offences quite possibly shifts the onus and responsibility and fear of law enforcement intervention to the fear and accountability measure imposed by the judiciary. It bears repeating that, during the three months prior to these charges, nearly 9,000 individual Internet protocol addresses were identified as accessing and trading child pornography in Ontario alone. To put that into context, we made 60 arrests.
Law enforcement cannot do this alone; this is a societal problem. Public awareness, legislation and crime prevention programs and turning the media spotlight on child sexual exploitation on the Internet help us, children, teens and parents educate themselves. That ensures that their Internet experience, be it through gaming or social networking sites, can be as rewarding as they want it to be and as safe as they need it to be, because every child matters, everywhere.
Pierre Chalifoux, Director General, Parents-Secours du Québec: Good morning. On behalf of Parents-Secours du Québec, I would like to thank you for having me here today. My name is Pierre Chalifoux, and I am the director general of Parents-Secours du Québec, an organization that represents the same rights and values as its counterpart in Canada, the Block Parent Program of Canada. The mission of Parents-Secours is to ensure the safety and protection of children and seniors by providing a network of safe addresses, and to promote prevention through information and education.
A safe address is a residence where children and seniors can seek safe refuge if they are being chased, assaulted, intimidated or injured. Parents-Secours du Québec welcomes vulnerable people who may be victims of sexual predators, and provides children with safety advice with respect to the types of molesters and the form of aggression.
I totally agree with the new bill, even though it is producing a lot of reactions in Quebec with respect to lengthening the sentences covered under the new bill. We have to deal with certain important aspects of this bill that relate to sexual offences against children.
In my opinion, some additions could be very well received by the general public in order to protect the public and increase the length of certain sentences for offences involving child pornography, to raise the age of consent to sexual activity, and to review offences involving the age of the victims, and by adding section 49, which means that an offender found guilty of certain offences will not have the right to a record suspension.
At the same time, I think that not allowing certain individuals to request a pardon is an excellent idea because, when a request for a pardon is made and the person is checked in the justice system, we will be able to get a clear and precise picture of who is making the request and the related risks.
Conditional sentences must be served in the community rather than in an institution, and they must be assessed very carefully. We must not forget the fact that the objective is not to reduce the cost of incarceration, but to be sure that the offender serving a sentence in the community will not endanger that community.
As for minimum mandatory sentences, I think we need to increase the timeframes so that victims have enough time to recover, knowing that the offender will not be returning soon to his or her entourage. So we think that the criminal justice system must systematically inform requestors of all the offender's crimes, regardless of age and offence. It is important to obtain a real and accurate picture of this person before informing citizens that the applicants are blameless, have no history of violence or assault, and can work with children or seniors. We must have information about the sexual offenders so that we can better assess the risks associated with offenders who have committed offences.
In addition, police services must have more flexibility in starting an investigation following a sexual offence and the disappearance of a child because the response time following an offence is extremely important for the victim and the victim's family.
We are currently working in partnership with an organization that is well known in Quebec and that puts a lot of energy into forcing people to inform on abusers. From where we stand, we are also taking this approach with seniors, forcing them to report aggressive, violent and intimidating behaviour. By strengthening the legislation and lengthening sentences, victims will feel more comfortable, knowing that the minimum mandatory sentences will be worth it and that they will be able to feel safe and supported in their efforts.
I firmly believe that the act should require an individual found guilty of a sexual offence to not be in the presence of the victim or the victim's family for at least five years, which would mean that an adolescent would have time to become an adult, independent and to properly recover in peace and quiet.
The act provides that a judge may impose a maximum of two years for these conditions. I do not think that is long enough.
To conclude, I am leaving decisions concerning the sentences for offences up to the committee. We must not think for a second about the costs related to this new legislation, but of the safety of citizens, specifically children and vulnerable seniors in order to be as safe as possible and for justice to be fair for everyone. Thank you very much.
David Matas, Legal Team Member, Beyond Borders: Good morning. Thank you very much for having us here today.
I am making this statement on behalf of Beyond Borders. My name is David Matas.
Child sexual abuse is a crime of the present against the future. Attacking the most vulnerable means that they are unable to protect themselves. Attacking the youngest means the consequences last the longest. The sexual abuse of children impacts the victims for the rest of their lives. Adults have to act in the best interests of children, not just their parents but the whole community. That means doing everything we can to prevent and combat child sexual abuse.
As the Convention on the Rights of the Child states, in all actions concerning children taken by legislative bodies, the best interests of the child must be a primary consideration. That tells us that as our first consideration when addressing this bill, a component of which criminalizes child sexual abuse, we must look at that from the perspective of what works best for children.
Both criminalization and sentencing are important components of combat against child sexual abuse. Both have been lacking. Child sexual abuse has historically been a crime to which society has turned a blind eye. Offences did not exist. Those that did exist were not enforced. What little enforcement there was led to derisory sentences. Only recently are we seeing significant efforts to combat this neglect.
Since sentences have been so low as to amount to effective impunity, there has been a need to increase sentences. It is sometimes argued against increased sentencing, which of course has a cost to the taxpayer, that the money is better spent on detection since detection is a more effective deterrence to crime than increased sentencing.
Whatever one can say of that argument generally, it is less persuasive for this sort of offence. A child sexual abuse is a private, undercover crime. Its victims are often not able to speak for themselves until many years after the fact. To do that, to overcome a sense of shame and complicity, they need some encouragement. When they see perpetrators they identify walking the streets shortly after conviction and sentence, the substantial personal efforts they have made to bring the perpetrators to justice do not seem worthwhile.
In this area, detection and sentences are linked. Significant sentencing increases detection because it encourages victims to come forward. Minimal sentencing has the opposite effect, telling victims that the efforts they would have to make to bring the perpetrators to justice will not result in much happening against the crime.
In general, when sentences increase and the incidence of crime decreases, one can say that the increased sentencing has been successful. In this area, though, one measure of the success of increased sentencing is increased reporting of the crime. The incidences of the crime may well have decreased, but what we will see in the courts, at least initially, is an increase as more victims come forward.
The question then becomes not whether to increase sentences in this area but how. The bill has two approaches, increasing minimums and increasing conditions on probations and recognizance. Increasing minimums, we realize, is controversial constitutionally, criminologically and politically. We must not lose sight, though, as we sort out that controversy, of the overall goal and the needed increased sentencing in this area.
Moreover, minimum sentencing is not the only way to do this. One way is more specific sentencing guidelines. The current Criminal Code sentencing guidelines have something specific about children but nothing specific about the sexual abuse of children. In that is the contrast with the Convention on the Rights of the Child, which does not just stand out against abuse of children generally but is specific and detailed about sexual abuse.
Another way of increasing sentencing is through judicial education. In the 84-page Judicial Education Course Calendar and Education Resources put out by the National Judicial Institute, I see nothing specific about addressing sexual abuse of children in a criminal law context.
The third way of addressing sentencing is a sentencing commission, which can do research on the effect that changes in sentences have on the increase of reporting of these sorts of crimes. The United States has a sentencing commission, but Canada does not.
A fourth way of dealing with sentencing is allowing interveners to make victim impact statements on behalf of children. The Criminal Code allows victim impact statements to be considered in sentencing; however, children are ill- placed to make statements. The law does not allow others to make these statements for them.
Beyond Borders has been active as an intervener in a number of court cases, including some I have been involved in, such as the constitutional challenge of pornography laws and the polygamy reference. In both cases, we argued for constitutionality.
Beyond Borders has made several victim impact statements in court with the consent of the accused. However, where the accused does not consent, which is often the case, the court is left without such a statement when addressing sentencing.
Finally, the Crown could be more aggressive than it has been in seeking significant sentencing in appealing court judgments where sentences are unreasonably low.
The bill addresses a real problem. In addressing this problem, we must invoke every viable solution.
The Chair: Thank you, Mr. Matas. Before turning to our committee members for questions, I want to do everything we possibly can to ensure that every senator has an opportunity first round to ask questions of the witnesses. As we know from past experience, it can become more challenging when we have a large panel like we have today. I am sure each of you has much to contribute to the work we are doing.
I would ask colleagues to keep that in mind as you ask your questions so that we provide the opportunity for everyone at this table to ask questions.
Senator Fraser: Good morning, everybody. Thank you all for being here. We heard very interesting presentations. I will turn to Mr. Matas.
It is nice to have you back. It has been a while since you have been before this committee. Welcome back. I will ask you to put on your lawyer's green eyeshade and spectacles.
In the case of the two new offences that are being created in this bill, I am unclear as to whether there exists in the law as it will stand, if this bill passes as written, a close-in-age exemption. If you look at proposed section 171.1, for example, it is about making sexually explicit material available to a child. It says you commit an offence if you facilitate the commission of this offence or an offence under a series of other sections of the Criminal Code.
Most of them, as I read it, have a close-in-age exemption, so indirectly I would assume a close-in-age exemption would apply here, but does it? I do not know. Later on, we get into subsections that talk about age. It is not a defence to say you believed the person was older than the person actually is, for example. They do not talk about the close-in- age exemption.
Clearly, I am worried about a 19-year-old or an 18-year-old who engages in what they call "sexting " with his girlfriend who is underage, but she is his real girlfriend, and young people apparently do this these days. Would those young people be caught here, or would they be exempt, as you read the code?
Mr. Matas: I am inclined to read the bill the way you do because it refers to these other sections that do have close- in-age exemptions. Of course, the matter may not come up depending on how the Crown prosecutes because if the Crown is not prosecuting close-in-age cases, the issue will never arise in the courts. However, if the Crown does start prosecuting close-in-age cases, it will have to be dealt with.
If you are at all uncertain about it, deal with it now rather than leaving it to the courts. If the courts deal with it, they may well end up coming to the same conclusion you have, that that was the intent. While it is going through legislation, it is preferable to dispel any doubts through specifics.
Senator Fraser: I am always nervous about assuming Crowns will not prosecute. There is just as likely to be a lunatic Crown out there as there is to be a lunatic anything else, including senators. You cannot count on everyone always exercising good judgment.
My next question would be for any of you. What we want is (a) to stop sexual offences, particularly against children, but (b) to stop repeat offending. All the material I have read suggests that many offenders will be best prevented from reoffending by possibly treatment plus incarceration. Short sentences in provincial institutions, as I understand it, will not get them that treatment.
Can any of you comment on that conundrum, that difficulty? We are not going to engage here in the kind of criminal procedures that lock everybody up for 20 years, so what do we do?
Mr. Naylor: What I can say about that is that a short provincial sentence and some mandatory treatment while incarcerated would probably do wonders.
The repeat offender is a major concern that we have. Another concern we have is that a lot of these people are not seeking treatment, and if it is not court-mandated treatment, then this is a sickness, something that will reoccur.
I am for minimum mandatory sentencing, but I am also for some mandated treatment.
Senator Fraser: Do most offenders now get shunted into treatment?
Mr. Naylor: If they are sentenced to such, yes. If they are not sentenced to it, if it is a voluntary thing, then no.
Senator Runciman: Thank you for being here, witnesses. Mr. Matas, I appreciate the suggestions you have made. They will be helpful in terms of future initiatives in the government.
To Mr. Naylor, I was reading a story here about the raid that netted 55 arrests, and you referenced that as well. You also talked about the two new offences, and I wonder if you could expand on that. You said you could have arrested a significant number of other people if these two new offences incorporated in this bill were law.
Could you speak a bit about this raid? I think there is a sense this is not a homegrown industry. Its greater extent is more significant than perhaps many people think. Could you speak about this raid, the scope of the case of the victims, the ages, the locations and perhaps some of the people involved? I noticed a quote in the story about people who were charged coming from all walks of life, all occupations and different age groups. Can you give us a sense of the magnitude of this, especially something about the victims?
Mr. Naylor: Certainly. To answer your first question, if this bill had been enacted, making sexually explicit material available to someone would have increased our scope of Internet child luring. To put it into laymen's terms, we have undercover officers who are doing Internet child luring investigations on a daily basis. It is a matter of minutes that they get hit upon by the predators who have webcams and are showing sexually explicit material to our officers on a daily basis. That is a common thing that happens every single day.
Having this law enacted in this bill makes it an offence to provide sexually explicit material to someone, and that falls into that criterion, in my opinion. That would have increased our scope of the investigation.
To speak specifically to that investigation, the charged persons are all male and range in age from 13 years to 72 years. It is all across Ontario; there are18 different police agencies and 53 different police members involved in this investigation, which was about a three-month investigation.
What was most interesting about this is that we did a study. We have some tools and some techniques to know who is trading child pornography on the Internet, and we hit on over 9,000 specific Internet protocol addresses that were downloading child pornography. To arrest and fully investigate all of those is not practical to do in these economic times with the law enforcement we have. However, we do have those people on file, and we are working away at it the best we possibly can.
Senator Runciman: Can you a say a bit about the victims?
Mr. Naylor: With all due respect, because of the victimization and re-victimization of these children, we try to stay away from ages, locations and identifying the victims any more. As I said in my speaking notes, a lot of them are familial victims. There were 22 children in the province of Ontario who were being sexually abused the day before our arrests who are not being sexually abused now and are in a place of safety.
Senator Runciman: I think there is a misconception that people who engage in the abuse of children are already serving long sentences, and perhaps all of you may want to come in on this. I have one story from my local community paper. A man, just a few months ago, was sentenced to a conditional sentence of two years less a day in connection with a string of sexual and physical assaults dating back to the early 1960s. How commonplace is that? As I said, I think most people would assume that individuals who engage in this kind of activity are already facing stiff sentences. What is your experience with respect to sentencing?
Mr. Naylor: My experience with respect to sentencing is that there is a misconception that sexual offenders go to jail for a long period of time. That is not true. There is mandatory counselling; there is house arrest; and there are conditions of probation and parole as well. However, to incarcerate sexual offenders, it is not happening in Canada.
Senator Runciman: Is that an experience that all of you can share with us?
Ms. Basque: In my experience, I have to agree with Mr. Naylor. It varies across the country, depending on the case and the circumstances. It does vary across the country. There is no standardization for sentencing for offences of a sexual nature.
Senator Runciman: Is it not uncommon for people not to be serving long sentencing?
Ms. Basque: House arrest and conditional sentencing are a common trend.
Senator Baker: We have to keep in mind that each case depends on its facts, the evidence and the decisions made by the Crown.
The one thing I want to ask about was sparked by a reference by Superintendent Bilinski and also Detective Inspector Naylor. It involves investigative techniques.
You say you need more up-to-date investigative techniques as they relate to modern technology. The one question that comes to my mind, whenever I hear that, is that we have all the search investigative provisions in the Criminal Code. Section 487 has the oldest ones, under warrants; section 492.2, the number recorders on telephones; section 186, listening to private conversations.
Then in the mid-1990s, as a committee, we passed legislation that allowed for the police to do something, and let me quote it for you. It is section 487.01(1)(c), and here is the one condition of granting the police authority to do something:
(c) there is no other provision in this or any other Act of Parliament that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done.
It was an open-ended provision that police investigators refer to as a "general warrant. " It is in use. I see it in use in drug cases, fraud cases and so on. I imagine you use that provision extensively because we gave the police authority to have an authorization. Perhaps this is unfair; I do not know if you have ever sworn an authorization. The sergeant is nodding her head.
Ms. Basque: I have.
Senator Baker: Excellent, then you know what I speak about. You can do something you cannot do under any other act of Parliament — unlimited activity, for any period of time you wish, anytime, day or night, and you can obtain that authorization 24 hours a day, via telewarrant, telephone, fax, or Internet. There are judges available, by law, 24 hours a day, seven days a week. Why would you need anything further than that provision, which we gave you back 1997? Do you use the general warrant provisions?
Ms. Basque: Do you mean with respect to child pornography investigations?
Senator Baker: Yes.
Ms. Basque: I have been doing child pornography investigations since 2006, and I have not had to use the general warrant per se unless we had to do the forensics on a computer we seized that was turned in voluntarily to the police because there is an expectation of privacy if it is a jointly owned computer or a familial computer. For example, if a spouse finds child pornography on the computer that belongs to the other spouse also and it is turned into the police voluntarily, we need a general warrant to do the forensics on that computer because there is an expectation of privacy by the other owner.
Other court orders that we use when it comes to child pornography investigations are production orders and search warrants. The production orders are used to obtain the customer name and address, or the basic subscriber information of the IP addresses. You have to understand that when the child pornography investigations come in to be reported, all we have is an IP address, a user name or email account. We do not have anything else. It is rare that we know who the offender is or have a possible suspect. We do not usually have a name because everybody uses the anonymity of the Internet. We have to get a production order, depending on the Internet service provider, to obtain that information. Not all service providers cooperate across Canada, and they deal with it differently. The section 487 search warrants are used to execute a search warrant to the residential home or business where the computer is sitting or the offender that we know. We seize any material that is related to the investigation.
Senator Baker: That is a normal warrant.
Ms. Basque: Absolutely.
Senator Baker: I am asking you, though, a specific question. We were confronted with this years ago, in 1997, to be exact. The RCMP came to this committee and said explicitly, "Look, we need a warrant that we can do anything we want to do that we cannot do today under an existing act of Parliament. "
I wonder why the section 487.01 general warrant provisions are not used more extensively. Perhaps you can provide an answer in writing if you do not want to get into that, for security reasons.
Ms. Basque: In my experience, in child pornography investigations we have not had to use a general warrant to conduct our investigations per se. We have techniques that we can use that do not require a warrant. The general warrant, in my experience, unless Inspector Naylor can add to it, was used only in the event that a computer was turned over voluntarily to the police.
Senator Baker: You could not do it under any other provision.
Ms. Basque: There is no other provision in the Criminal Code to allow the police to search that computer; therefore, a general warrant gives the authority to the police with reasonable grounds to believe an offence has been committed to do that search.
Mr. Naylor: General warrants are a wonderful tool, but they are not a catch-all tool.
Senator Baker: How is that?
Mr. Naylor: In coming from a search warrant background, it is preferred to refer to a specific section in the code for search warrant as opposed to the general warrant. The general warrant is, as you have said, for intangibles. It is for non-specifics. We quite frequently use general warrants. I will give you an example of how legislation has not caught up with technology. In child pornography investigations you launch your investigation; you write your 487 search warrant to obtain the computer from the house where you have reasonable and probable grounds. It then becomes problematic because your search warrant was to attend a certain place to seize a certain thing, but now we have to get into the information in that computer. For the information in that computer, it is very difficult for a law enforcement officer to establish reasonable and probable grounds as to what is in that computer. We are looking for a specific thing, but you cannot go to that specific area of a computer to look for specific things. Specifically, if you are looking for child pornography and you find other offences committed within that computer, that becomes problematic. Basically, you need two search warrants. You need a search warrant to get into the house and seize, and then you need a search warrant depending on how you have acquired the evidence to get in to search the rest of the computer.
For search warrants on computers, the Criminal Code, in my opinion, is not up to date where we need to be for the complexity of what actually is within the computer.
Senator Baker: We gave you 487.01 and you can do it under that.
Mr. Naylor: It is utilized frequently, but again, it is not very specific.
The Chair: Thank you. I think we have covered that issue. I remind honourable senators that the next panel is scheduled for 10:15. I have a lengthy list of senators who wish to ask questions.
Senator Angus: Clearly, everyone is focused on the main goal, which is to prevent child sexual exploitation and sexual abuse. Listening to your evidence, I am getting the sense that it is all about the Internet, all about computers. I wonder if I am missing something here. Let us go back to the advent of the Internet. I think another witness or maybe one of you said that we did not have as much sexual abuse before the Internet. Is that true or is that a false impression I have?
Mr. Naylor: I would say the proliferation of child pornography is a result of Internet. It is freely traded on a daily basis now, whereas prior to the Internet a lot of effort had to be expended in order to trade child pornography.
Mr. Bilinski: To add to Inspector Naylor's comments, I believe that the Internet has become a facilitator and has also given I guess the luxury of being anonymous. You may have a number of like-minded people interested in the same topic that are trading images but do not know their identities. That gives them a certain sense of comfort, which makes it more attractive for them to use that particular tool to be able to trade images.
Senator Angus: I got the sense of the magnitude of the problem when you identified in a fairly narrow time frame 9,000 incidents of distribution of pornographic material in Ontario. Is that correct?
Mr. Naylor: Yes.
Senator Angus: You are only able to focus in on some small number, which ultimately led to 58 or 60 arrests. Are we talking here only about the distribution of pornographic materials for the purposes of luring, or are we talking generally about sexual exploitation and sexual abuse of children?
Ms. Basque: There are different facets of child pornography investigations. There is luring online, where an offender will go online and portray themselves as a young child or as an adult and try to lure the children in, or talk to a like- minded individual of their age and trade in child pornography images, or even make attempts to meet, if they have access to a child, to make those meets so they can have sexual relations with the child.
There is distributing material, people who just go online and distribute the child pornography and download it. There are people who make it. Anyone who has access to children with digital cameras today with the technology that we have can take images of the children and load them up online so they can be distributed and accessed.
Some are commercialized; some people make them to get paid. There are sites you can go to and use your credit card to access child pornography, so it is a commodity. Children online are a commodity when it comes to child pornography investigations. There are different facets of child pornography. It is not just the sharing and distribution. When those images are shared, the children are being re-victimized every time. It is hard to remove those images from the Internet. Those images will follow the children for the rest of their lives. They will always have in the back of their head while they are growing up, will my picture surface? It is sad for the victim as a whole.
Senator Angus: I understand the focus on the Internet because the bill we are reviewing has created the new luring and the sentencing issues.
I want to be sure. There are all kinds of other sexual abuse of children that has nothing to do with the Internet; am I not correct? Since all of you are focused and the ICE units and these organizations are set up and dedicated to preventing or stopping at least heinous crimes, there are lots of them that have nothing at all to do with the Internet.
Mr. Naylor: Absolutely.
Senator Angus: Do you get involved in that part, or are you only in the Internet part?
Mr. Naylor: Our level of expertise focus is Internet child exploitation.
Ms. Basque: We have units that investigate the sexual abuse of children themselves.
Senator Angus: There are other units, yes.
Ms. Basque: We work in collaboration with those units.
Mr. Matas: I was involved in, as I indicated in my opening statement, the issue of the constitutionality of the child pornography laws in the Criminal Code. We argued for the constitutionality. The British Columbia Supreme Court said they were unconstitutional. The Supreme Court of Canada upheld them. One of the reasons it upheld them was the linkage between pornography and child sexual abuse of other forms, the non-pornographic forms of child sexual abuse. I do not think you can divide the two. The Internet pornography is linked to all the non-Internet child sexual abuse.
Senator Angus: With your green eyeshade you are reading my mind. That is exactly where I was coming from. I do not see how you can de-link them.
Senator Cowan: Superintendent Bilinski, in your statement you did not mention Bill C-10, the bill we are dealing with here. I assume that you endorse the views presented by Inspector Naylor with respect to this bill. You support the bill?
Mr. Bilinski: I support anything that will help us do our work more effectively. My job at the centre is to try to use the resources that we have to support police forces in enforcing the laws of Canada, whether they be human resources, technological or financial. As I mentioned, anything that will help us do our work I am in support of.
Senator Cowan: So that is a yes?
Mr. Bilinski: I guess it would be.
Senator Cowan: With respect to the resources and the changes in the law, Inspector Naylor, I think you said that the creation of two new offences was another arrow in your quiver and would have assisted you in making more arrests as a result of the investigations that you conducted recently in Ontario. However, I also detect that there is an underlying need for more resources. You mentioned the large number of individuals you had identified that you simply did not have the time and also the financial and human resources to investigate more. There is a need for more human resources, more financial resources in addition to changes of the law that you are supporting today; is that correct?
Mr. Naylor: That is correct, yes.
Senator Cowan: The third question had to do with some suggestions Mr. Matas made. He talked about the linkage, and I think you did as well on page 13 of your brief, and you talked about the fear of getting caught as a result of the publicity of the investigation and the arrests, a decrease in the incidence immediately after the publicity, and so the fear of getting caught clearly had an impact on the incidence of child sexual abuse, over the Internet at least. Mr. Matas suggested that in addition to sentencing there were other ways in which we might in the future consider dealing with this issue. Can either the Ontario Provincial Police or the RCMP comment on those points that Mr. Matas made to us this morning?
Mr. Naylor: What I can comment on is what I said in my opening statement about the incidence severely decreasing. That means that these like-minded people are paying attention. Therefore, whenever they are paying attention, however we can get their attention to make them stop I think is a very important way for us to do proactive either education or law enforcement here. I cannot say specifically that it is a role of law enforcement to say, "Do not do this. " I think it is society's responsibility to say, "Do not do this, " but I can tell you there was a significant decrease in online activity following the arrests.
Senator Cowan: That was probably related to the fear that they too might get caught.
Mr. Naylor: It very well could have been, yes.
Mr. Bilinski: I can just elaborate on Inspector Naylor's statement. On the other side of the coin, we have intelligence, as an example, that shortly after the earthquake happened in Haiti there was a spike in trading, and we feel that is because individuals that are interested in that type of material are opportunistic as well. They realize that because of the lack of infrastructure the police would be busy elsewhere and they would be able to use those events and use those opportunities to their advantage.
Senator Cowan: That reinforces the point that we need to put more resources into this so there will be an increased likelihood of apprehension and identification, and that is a major factor in what we are dealing with here.
Mr. Bilinski: Not only police resources but resources elsewhere as well. At the centre, we realize that the volume is great and we spend a lot of time analyzing the risk, and we try to identify those investigations with the greater risk — as an example, hands-on offenders. I am not saying that we are not interested in those that are simply trading, because that is an offence as well, but those investigations that we are able to identify with an immediate risk to a child or that the individual that we are looking at has access to children, they go to the top of the pile.
Senator Cowan: You do good work, and we appreciate it.
Senator Boisvenu: Thank you to everyone for being here this morning. You have presented an accurate portrait of the reality of cybercrime. The picture you have painted for us this morning gives us just a glimpse at the people involved in this type of crime, which is just the tip of the iceberg.
Mr. Chalifoux, in your brief, you say that you "totally agree with the new bill, even though it is producing a lot of reactions in Quebec. " However, according to a survey conducted by Léger Marketing last fall, 77 per cent of Quebec's population agrees with all the measures set out in Bill C-10, especially those on cybercrime. Even so, if you read some of Quebec's newspapers or listen to certain so-called experts on crime, you will note two separate opinions. Quebeckers are saying that we should crack down on that type of crime, whereas the so-called experts are saying that we should take a more gradual approach.
You and the volunteers deal with families nearly every week, and I commend you on that. What expectations do families have when it comes to that type of crime?
Mr. Chalifoux: Since the movement was created, 35 years ago, we have fortunately not had any cases where sexual predators brought children to the homes, since our safe houses are secure residences that have been subjected to investigations. So, there has been no harm in that regard.
The only thing people are concerned about is always safety. Today, with the availability of current events, the Internet and so on, information travels very fast, and people really know what is going on.
Therefore, the volunteers worry about ensuring the victims' full protection. Information and training may enable them to provide that protection. However, it is of the utmost importance to ensure that the people who come to us for help are safe. I think that is the priority.
Senator Boisvenu: And that is achieved through more severe sentences, especially for reoffenders?
Mr. Chalifoux: Yes, among other things. However, I think that support is also required. I completely agree with longer sentences. But support must also be provided because we cannot redirect everyone. With support comes monitoring. I think that extending sentences will help victims recover. It will also help keep reoffenders off the streets for a while, so that victims can recover properly and feel safe.
Senator Boisvenu: Mr. Naylor, you mentioned a rather alarming statistic, which indicates that 30 per cent of people arrested were reoffenders. In other words, they had committed similar crimes in the past. You also say that minors are involved in the network and in cybercrime.
You say that cybercriminals get an early start. People do not decide to start phishing 14 to 15 year olds at age 40. People under 18 become involved in that type of crime.
Mr. Naylor: That is correct, and with the proliferation and the advances of the Internet, it is my experience and from the research we have done that the ages of people collecting and trading child pornography are getting younger and younger and younger. To answer a question from this morning, we are not talking about what I refer to as age-appropriate. It is not a 15-year-old that is trading or online with a 13-year-old; we are talking about 18-year-olds who are trying to lure very young children.
Senator Boisvenu: You said that the knowledge that their name will be published makes predators more reluctant to reoffend. When it comes to 16 to 18-year-old cybercriminals who reoffend, should the names of those minors also be made public to protect victims?
Mr. Naylor: That is another issue. I am not quite sure that it is most appropriate to do because I do not think that publishing the names of young offenders in this case will prove any point. With the anonymity of the Internet where people can shroud themselves behind masked identification, it is not going to protect anyone on the other side. I am not sure, in this specific case, if that would be most appropriate.
Senator Jaffer: I am the chair of the Human Rights Committee, and we just released a report on sexual exploitation. The statistics we found were that 61 per cent of all sexual assault victims are children, and 86 per cent of assaults are perpetuated by individuals known to the victim. Every year there are 9,000 reported sexual assaults against children in Canada, and over 80 per cent of these child victims are girls.
We looked at all different kinds, from child pornography to Internet luring. We stated that it is a violation of a child's inherent human dignity for the sexual gratification of adults. The worst, of course, is in the Aboriginal community; our population is 5 per cent Aboriginal, but at least half of those who were abused were from the Aboriginal community.
The reason I put those statistics to you is that they are under-reported. We know there are more cases. One of the very clear things that came out is that many of these sexual assaults are within the community, committed within close circles. The fear is that if you have minimum mandatory sentencing there will be even more under-reporting.
Will you all comment on that?
Mr. Matas, I was very interested in clarifying what you said about the Convention on the Rights of the Child. I would like you to expand on what you said on child abuse, that the convention expects us to do more.
Mr. Bilinski: As a result of my discussions with Cybertip, which specializes in education and prevention, it is a fact that under-reporting is a problem. One of their challenges is continual, and that is to convince young people to streetproof themselves, to be aware, but also to report any instances of abuse or anything inappropriate. I think that is something we need to continually work at and look at.
With respect to any particular communities that are singled out, I do not have any statistics or experience in that area.
Ms. Basque: I have to reiterate what Mr. Bilinski said. I do not have statistics on specific communities in Canada, whether under-reported or not, but I can reiterate that it is definitely under-reported. However, with the education we are providing in the schools to children, I think they are growing up knowing they can tell someone that they trust what is going on with them, what is not right and what is wrong, where years ago you just did not report. I think that children today are educating themselves and they know they can report to someone they trust and that they will be looked after.
Mr. Naylor: I watched with interest some of the other presenters on this topic alone, and I have to disagree with respect to Internet child sexual exploitation, not sexual exploitation. That is a different ball game. Internet sexual exploitation, our research in Ontario does not support exploitation that is a higher percentage in Aboriginal and First Nations communities. Sexual abuse absolutely, but not Internet-based sexual abuse.
Mr. Chalifoux: I increasingly believe in reporting abuse. However, those who report must have a support network. Currently, the penalties are not harsh enough to motivate victims to report abuse. We must educate Canadians.
We do a lot of work with seniors to encourage them to report abuse. We see that, since the abusers are often family members, seniors must be provided with support and resources to keep them safe enough to report abuse. Reporting is one thing, but we must also foresee its potential consequences and find ways to fully support those who report.
Mr. Matas: Of course that is a difficult question. How do you put the best interests of children first? There is not one way of doing it. I think it is kind of a principle you have to keep in mind in going about your daily work as parliamentarians. One thing that concerned me about this bill was that it was not only about children. It is an omnibus bill. I appreciate that there are parliamentary reasons for doing that, which have nothing to do with the subjects we are addressing today.
I would like to see, sometime in the future, legislation proposed that deals only and specifically with this problem, so that it is highlighted as a particular problem and given particular focus and attention.
The Chair: I believe the senator's second question was directed to you as well, Mr. Matas.
Senator Jaffer: I was interested in what you said, that this bill does cover child abuse but does not go as far as the Convention on the Rights of the Child.
Mr. Matas: I mentioned that in the context of sentencing guidelines. There are sentencing guidelines set out in the Criminal Code that talk about abuse of children but not about sexual abuse of children. Of course, abuse of children can take non-sexual forms. However, the Convention on the Rights of the Child talks about abuse of children but also specifically about sexual abuse of children.
My view is that there could be much more particularity in the sentencing guidelines generally, and in this area especially, so that the judiciary, in dealing with offences of the sexual abuse of children, would have guidelines that direct them to that issue.
Senator Frum: Mr. Matas, I want to ask you about a well-known case in Canada. The sentence just came down for one defendant last week, and this is the case of the rave in British Columbia where there was a gang rape and then there was also videotaping and photography. The photography and videotape ended up on the Internet. The judgment for the young person who took the videotape was one year probation and a 1,500-word essay.
I wanted to ask you what you thought about this judgment and whether, if Bill C-10 were in place, the judge would have been be obliged to sentence differently.
Mr. Matas: I would say the case is an example of a problem with sentencing. It is very difficult to go into a particular case, because whatever facts you marshal, there is always someone on the other side to marshal some other facts you have not mentioned.
Within our own organization we were dismayed by that sentence. One of the encouragements I got in coming here to make a submission was to say something about that case as an example. I was reluctant to say this is an example, because you then just get into the facts of case. I would say it is easy enough to pull up, whether it is this case or another, lots of examples where sentencing is inappropriate.
Would this bill have an impact? I hope so. It is impossible for me to say what will happen with the issue of minimum sentencing, because it is already under constitutional challenge, and who knows what will happen with that. The bill sends a message that these crimes have to be treated more seriously. Regardless of the constitutionality of minimum sentencing in individual offences, in individual cases, that message, I believe, will get across to the legal community and judiciary.
The general notion that there is under-sentencing and that there needs to be higher sentencing in this area is a positive message that comes out of this bill.
Senator Frum: To those in law enforcement, this is becoming a more prevalent trend: not just violent gang rapes, but videotaping becomes part of the rape process. That is becoming sort of part and parcel of the assault and becoming a more common element, it seems. Could you comment on that? To me, that is extreme. The transmission of child abuse on the Internet goes very widely. Could you comment on that?
Ms. Basque: I cannot comment on the case specifics, but I am aware of the case you are talking about. Yes, technology has allowed individuals to photograph or videotape their abuse, what they are doing, and upload it to the Internet quite easily for it to be traded. It is a common trend that is increasing with the capabilities of the Internet, for sure. It is something that the police and the victims are now dealing with. Before, the victim would just be dealing with the sexual abuse between them and whoever their abuser was, and now they have to worry about their future when it comes to their pictures and in terms of being re-victimized all the time for the world to see. It was between the victim and the abuser. Now it is exposed to the world, and that is something the victim has to deal with for the rest of their life.
Mr. Bilinski: We consider every image the scene of a crime. Without being aware of the specifics of that particular incident, once it is transmitted over the Internet, it gives us an additional tool to be able to work towards solving this crime, because we can perform forensics on the images, which may contain clues to help us investigate this incident.
Keeping in mind that absolutely the victim is being re-victimized because of the existence of the images, on the other side of the coin, it is an additional tool to help us solve these things. Whether that will have an effect on anyone contemplating recording these things, I do not know.
Senator Chaput: Child sexual abuse is a topic that is close to all of our hearts. I feel there is no crime more serious than child sexual abuse. We are talking about protecting children and ensuring their safety. On the one hand, we must protect them and ensure their safety so that kind of crime never happens. On the other hand, we must protect them and ensure their safety when it does happen — and you mentioned various ways to do so.
In addition, victims must be encouraged to report their abusers. Mr. Naylor, in your presentation, you said that 88 per cent of sexual assault cases are not reported to the police. Those statistics are from 2009. Were you talking only about sexual abuse on the Internet?
Mr. Naylor: The statistics are Internet-based, yes.
Senator Chaput: You then said that children, of course, are even less likely to report abuse, so the statistics must be higher. My question is the following: how can Bill C-10 encourage children to report their abusers? Does it do that? If so, how? If not, how can we do more to protect those children, encourage them to report their abusers and ensure their safety?
Mr. Naylor: I am not sure that Bill C-10 is the appropriate place to point to children to report sexual offences. As part of the provincial strategy to protect children from exploitation and abuse on the Internet, part of our provincial strategy is multidisciplinary, through enforcement, education and prosecution. Every law enforcement officer and agency in Canada is strongly promoting child sexual exploitation awareness to young people right now, through our friends at Cybertip and the Canadian Centre for Child Protection as well.
Senator Chaput: Mr. Chalifoux, do you have anything to add?
Mr. Chalifoux: As I was saying earlier, I think this is about education. If sentences were increased, I think that people would be more likely to report. However, it is also a matter of education. It is not something that will happen overnight, but at least one element will have a positive impact. If it does not happen this year or in the immediate future, it will happen in the medium and long term. People will ask themselves if it is worth it. I think that the bill will actually help in that regard by increasing sentences, but that will happen in the medium and long term.
Senator Chaput: Statistics also show that 59 per cent of children who are victims of pornography know their abusers; in 43 per cent of cases, abusers were family members. How can we encourage children to report abuse when it is committed by family, by people they know very well? Do you have any suggestions on how to encourage children to report abuse that is already taking place?
Mr. Naylor: That is a very good question. Part of our public education campaign is self-awareness of victimization. There are many children out there who are being victimized on a daily basis by close family associates or by family members who do not even know they are being victimized.
Through our public awareness and public education campaigns, we are providing young people with tools and techniques to teach them what is right and what is wrong, and what can be close contact and what cannot be close contact. We rely on the Canadian Centre for Child Protection and Cybertip for that assistance.
Senator Chaput: So we are talking about partners. Bill C-10 does not necessarily help in that area, but it is a tool that helps you work even more closely with other partners, right?
Mr. Naylor: Yes.
Senator Chaput: Mr. Chalifoux, do you believe in that as well?
Mr. Chalifoux: Yes, I do.
Senator Lang: I want to begin with the mandatory minimum sentences. Mr. Matas referred to the general concept of mandatory minimums as a message, I believe, and as guidelines. It seems to me that this type of legislation sets the moral standards or the moral compass for what society feels these offences should, at least at a minimum, bear from the point of view of the judiciary.
I want to ask Mr. Naylor the following: From your point of view, with these minimums going into effect and for those who would choose to commit these types of offences, it would seem to me that that would be a deterrent for those individuals — or at least one deterrent, a type of deterrent to them — to make them take a second look at whether they should be pursuing this type of activity, knowing that they will go to jail, as opposed to the present system, where for some of these offences there are conditional sentences and minimal consequences for their actions. I find this abhorrent. In some cases we are talking about a one-year minimum sentence. I think in some cases it should be more.
Do any of you feel this will act as one more tool in terms of a deterrent for this type of activity, once they know this is coming into effect, if it is passed?
Mr. Naylor: As I stated in my remarks, these like-minded people are paying attention. I think that a one-year minimum mandatory sentence, for example, for online luring will get people's attention. That will make them think twice, in my opinion, about the activity they are doing, and that the "right here, right now " activity they are doing is causing the potential of danger of a child. It will certainly get their attention.
Mr. Chalifoux: I also agree with that. It may provide the abuser with a bit more room to think or with some support, as I was saying earlier. Currently, the sentences are minimal, and I do not think that discourages many people. I more or less agree with what Senator Boisvenu said earlier, regarding the possibility of publishing offenders' names. I think it is important for our organization to know whether someone is a predator or has committed sexual crimes. We investigate all family members. We may not necessarily be talking about parents, but maybe 16- or 17-year-old boys who are predators and commit crimes. I do not think the right approach is to place a lost child in a residence for protection when we have no information on the individuals living there. We should have an accurate profile of each person living there. We should also know about anyone with a criminal record for sexual or violent crimes.
When it comes to minors, the police identification system often provides only the information "young offender, " which is completely unacceptable.
Senator Lang: I will now move to another area, the Internet service providers. We dealt with legislation, I believe last year, wherein there is the duty to report. It was passed here last year or two years ago, and Mr. Naylor referenced it in his opening remarks.
Can you tell us how well that is working? What effect does it have as a tool for you to continue on and identify these predators?
Mr. Naylor: The Internet service providers in Ontario — and I can only speak to Ontario alone because that is the area of my jurisdiction — have become a kind of unwritten partner with law enforcement agencies now. We are getting good cooperation from them right now, and that is a good relationship. I cannot give you statistics as to how much has been reported through the designated agency, Cybertip, but I know there has been some. The relationship is good, to answer your question.
Senator Lang: The one statistic that really came to my attention was the 9,000 identified Internet sites or Internet addresses. You stated that they were strictly in Ontario?
Mr. Naylor: Just Ontario, yes.
Senator Lang: I would like to follow up on this. Since the Internet is broad and global, would there not also be other individuals on those same sites, whether from Alberta or from Yukon? If they are, why would they not be identified?
Mr. Naylor: Not to get into any type of investigation technique here, but the Internet protocol addresses that were identified were trading child pornography between two people through open file sharing. That is specifically where we have picked off the 9,000 IP addresses. It is not specifically sites they are going to, but like-minded individuals within Ontario, at least 9,000 of them when we did our snapshot, who were trading child pornography in Ontario alone.
Senator Lang: That statistic is staggering.
Mr. Naylor: That is just one method of trading child pornography. There are several methods. It is rampant, although I do not like to use that term.
Ms. Basque: On a national scale, Ontario is not alone in this. Every province has a fair amount of individuals who are sharing child pornography through the same file sharing system. It is a common trend not only across the country but also across the world. We can pull up those statistics internationally. It is shocking to see the amount of people sharing and trading around the world.
Senator Angus: Senator Jaffer had a bunch of numbers from her report, and she stated 9,000. Is it the same 9,000? I am curious; it seems to be a coincidence.
Senator Jaffer: I am not mistaken. You were talking Ontario and pornography cases. I was talking about 9,000 children being exploited a year.
Senator Angus: It is another 9,000.
Senator Dagenais: I want to thank our guests. I am always glad to see police colleagues again.
My question is for Mr. Bilinski and Mr. Naylor. What kind of difficulties do you mostly come across in your investigations into child pornography? We have heard so much about that, but I would like you to tell us again about the main difficulties in those kinds of investigations and how Bill C-10 will help you in terms of that.
Mr. Bilinski: Those types of investigations are very complicated, as you know. The sheer volume has always been a problem. We are talking about over 9,000 Internet addresses in Ontario. My colleague, Sergeant Basque, said that the problem is just as serious across the country and even worldwide.
Considering our resources, we cannot deal with each specific address. Of the addresses we are able to identify, we try to focus on those that pose the highest risk, those that involve people with access to children and situations where physical assault is a possibility. We are not limited to the sharing of child pornography.
The second challenge we face is technology. In order for us to present evidence before the courts, our technology and evidence must be recognized as admissible according to the regulations. Those who use technology to share pornography do not follow the same rules as us. That is something we must work on. In other words, we have to validate our technological evidence so that we can present it before the courts. Every time we seize a computer, we must analyze its contents, and that requires a lot of time and resources.
Generally speaking, those are the two factors that greatly affect us.
Mr. Naylor: I echo Mr. Bilinski's comments there. We try our best to prioritize. We have a worst-offender category, and we work from the top down from that. That means people who have access to daycare, schoolteachers, people who work in public sporting, things along those lines. However, we have to do open-source research to find out who the people are. In these investigations, you have to start with the offence and then work back to the offenders as opposed to starting with the offender and working to the offence. We are working kind of backwards on this.
I also echo his statement on technology. Technology is moving so fast, and law enforcement has to work with limited budgets and within the scope of those budgets. We have some clever people on the forefront of trying to combat technology, but technology is wide open because it is the private dollar that is funding that sort of technology, and we are trying to combat it with the public dollar. There is no comparison; they do not meet. We do the very best with what we can. We have some dedicated, smart people working for both the provincial and the federal government doing this who would be making 10 times the amount of money if they were working in the private sector. However, they are doing it for the right reasons and for the right cause.
The Chair: I have a final question on the first round. I was interested to hear some of the comments that were made regarding the appropriateness of mandatory minimum sentences. As I am sure you are aware, aside from this particular topic, mandatory minimums are proposed in other aspects of Bill C-10 and other amendments to the Criminal Code that have been before this committee before. There has been considerable debate about the appropriateness of mandatory minimums, and that will, I am sure, continue.
Mr. Matas, you made a couple of points, namely, that mandatory minimums send a message. They send a message of how important and serious these particular matters are regarded by society. I am sure that is important. You also said, in response to a question by Senator Frum, that mandatory minimums would address in some fashion what is thought to be under-sentencing — that is, sentences that are not proportionate to the gravity of the offence. That is required, as we know, under the principles of sentencing.
There is another aspect that Ms. Basque touched on. I thought you suggested that mandatory minimums would help to address a lack of consistency in sentencing on matters involving sexual offences against children. Has it been your experience that there seems to be an inconsistency in how these matters have been dealt with by the courts? If that is the case, it can erode respect for the administration of justice if there is that lack of consistency. Would you care to comment further on that?
Ms. Basque: I cannot comment on every case because each case is individual to the sentencing. Depending on the circumstances and what is brought forth to the court, the judges will sentence accordingly. Mandatory minimums would definitely bring a consistency across Canada when it comes to these types of offences. As Mr. Naylor said, it would probably bring deterrence to the individuals who are committing the offences, knowing that there is no loophole such as, "If I just do child luring, the chances of me being sentenced will be to conditional instead of exchange where there is a mandatory minimum. "
The Chair: Would others wish to comment on the issue of consistency in sentencing? Do you view that as being important?
Mr. Bilinski: I would say that, from my experience, the sentencing has not been consistent from one area to the next. I guess that is understandable in some way because, as Sergeant Basque mentioned, each case is individual. I know that there is not a consistent sentence on a global basis as well, depending on what country we are looking at. What we need to do is to understand the problem, and I think there are some instances where we do not fully appreciate the scope of the problem and the damage it has caused to an individual child when that photograph and the images and the memories will follow them forever.
The Chair: I appreciate those responses. We are very tight and are just about out of time, but, on a second round, I know Senator Fraser has a question.
Senator Fraser: Mr. Naylor, when you were talking about the 9,000 IP addresses that were checked out for this project, you then said, I believe, "We have them on file. " In a way, that is very reassuring to a member of the public, but whenever I hear about lists kept by the authorities, any authorities on any subject, I instantly have questions. What happens to the lists? What are the privacy safeguards that surround the retention of those lists? How does one get off a list, especially if one does not even know one is on it? Are there time delay mechanisms? I am thinking particularly of young people. People in their mid-teens do all kinds of weird stuff, and 10 years later quite a large number of them are no longer doing the weird stuff. Can you tell me, once you have this information, how it is handled and managed and safeguarded?
Mr. Naylor: Without getting into too much investigative technique, the list is stored, and it is just a list of IP addresses. That is all it is.
Senator Fraser: That is both good and alarming, in that it is just the IP addresses so anybody in the house can be captured, so to speak.
Mr. Naylor: All that list tells us is that, at a certain time and date in history, that IP address, in a open source, open Internet, accessed known files of child pornography. That is all it is. If the police can or choose to investigate that further, then at that time we would have to go to the Internet service provider and find out where that IP address belongs. As I said in my statement, it is like a license plate that went through, for example, photo radar. I have no idea where it belongs or who belongs to it or any of that information.
Senator Fraser: You are keeping a list of licence plates.
Mr. Naylor: Yes. We do that specifically for child pornography. We need to know. This is not a one-time deal. Like- minded people go back and trade, and they are constantly doing this. That is where we get back to the other question. How do we prioritize? If someone has traded 40,000 images of child pornography, that is someone I would be more interested in investigating than someone who has traded two. It is important for us to maintain that, and I do not like to use the term database but, for all intents and purposes, that is what it is, a database of numbers as to potential offenders who are trading child pornography.
Senator Fraser: I will leave it there. Thank you, chair.
The Chair: Senators, that concludes our opportunity to discuss this further with this panel. On your behalf, I want to thank each of them for the contribution they have made to our work. Beyond that, I know all of you, in your own specific fields, are working overtime to protect the children of this country, our children and grandchildren, from this type of heinous crime. On a personal level, we truly thank you for the efforts and contributions you are making.
Colleagues, we continue with our consideration of Part 2 of Bill C-10. As you know, Part 2 focuses on sexual offences against children.
We now have before us the second panel of the day. We are very pleased to have with us from the organization Boost Child Abuse Prevention & Intervention Ms. Karyn Kennedy, Executive Director; and Mr. Randall Fletcher, Sexual Deviance Specialist. Welcome.
Ms. Kennedy, I understand you have an opening statement.
Karyn Kennedy, Executive Director, Boost Child Abuse Prevention & Intervention: I do. Thank you for the opportunity to speak to you about Bill C-10, the safe streets and communities act. My name is Karyn Kennedy, and I am the Executive Director of Boost Child Abuse Prevention & Intervention. Boost is located in Toronto and has offices in Barrie and Peterborough. For the past 30 years, Boost has provided programs and services to children, youth and their families who have experienced abuse or violence and has worked collaboratively with our community partners to improve the prevention, investigation, treatment and prosecution of child abuse.
Boost has provided services to tens of thousands of children and youth and has trained more than 50,000 professionals. We are seen as a leader in the field of child abuse and as an advocate and voice for children.
Boost is also a member of the Internet child sexual exploitation strategy for the province of Ontario and ensures that children and youth victims are referred to counsellors across the province that can help them recover from this crime. Clinicians at Boost also provide treatment to children, youth and their families living in the Toronto area who have experienced child sexual exploitation on the Internet.
Child exploitation on the Internet is one area of criminal activity that is on the increase. Recently, a province-wide takedown occurred in Ontario, and close to 60 offenders were arrested and 22 children identified. At the media conference, the OPP reported this was the largest number of coordinated arrests to date in Canada; however, more than 9,000 IP addresses were identified where child pornography had been downloaded or shared. This number suggests that there are many children being victimized, and law enforcement needs all the tools available to arrest these offenders and protect these children. This is a significant problem in the lives of children, and we must do all we can to stop it.
Boost supports the addition of the new offences in Bill C-10 and supports the government's recognition that sexual crimes against children that begin on the Internet are extremely serious and need to be prevented before they result in hands-on offences.
With respect to the two new offences — providing sexually explicit material to a child and agreeing or making arrangements with another person via telecommunication to commit a sexual offence against a child — the creation of these new laws is important because they recognize the concept of grooming and the connection between how technology can facilitate sexual offences against children. By acknowledging this, the law will more effectively protect children as there will be more opportunities to make arrests and interrupt the grooming and planning process before it proceeds to off-line hands-on sexual acts or potentially traumatizes a victim due to the content of online communications by the offender.
By creating a law that allows police to intervene earlier, not only will further offences be prevented, but education to child and youth victims and their families can be provided to further reduce risks to children and youth. Where indicated, treatment can address the negative impact of the crime on victims.
It is known that sex offenders use technology as a common strategy to make sexually explicit material available to desensitize children and to normalize inappropriate sexual acts with children. We know from the research by Wolak, Mitchell and Finkelhor that approximately 1 in 25 youth received online sexual solicitation where the solicitor tried to make off-line contact, and in more than one quarter of incidents, solicitors asked youth for sexual photographs of themselves.
These new laws send a clear message that the government intends to keep up to date on how sex offenders commit crimes against children. Technology is continually advancing and quickly. By prohibiting anyone from using any means of telecommunications, a broader definition has been put forward that is inclusive as technology changes.
These crimes on their own may not seem that terrible to some, but the ultimate goal of these offenders is to commit further hands-on offences facilitated by technology. New research is emerging that connects online offenders to off-line contact offences. Based on official records, approximately 15 per cent of online offenders have had previous contact offences against children. However, based on self-reporting, Hanson and Babchishin in 2009 reported that 56 per cent of online offenders admitted to committing hands-on offences, and Hernandez and Bourke reported that 85 per cent of online offenders admitted to committing off-line offences against children.
Research also tells us that the majority of offenders who produce child abuse media are known to their victims; 50 per cent of all child sexual abuse images are made by family members. To quote Taylor and Quayle, child protection is of the utmost importance given that those who produce child sexual abuse images are generally adults who care for or have regular access to a child. A lack of contact with a child is probably the most significant factor limiting the production of child pornography, making opportunity a central factor in this crime. One of the recent arrests in Ontario occurred in a home where a private child care centre was being run.
Children who are victimized by sexual exploitation on the Internet are deeply affected and require support and treatment to recover from these experiences. The addition and increase of mandatory minimum sentences serves to reflect the seriousness of these crimes and the significant impact they have on child victims.
The impact of a sexual offence is different for every victim. From the perspective of victims, including mandatory minimum sentences for all child-specific sexual offences sends the message there are no underlying values as to which sexually victimizing offences are more serious than others. The experience is individual.
The law takes into account that all sexual offences against children must be taken seriously. I noted that earlier witnesses argued against mandatory minimum sentences as being too harsh and removing discretion from the judiciary. I would suggest that current sentences, and even more concerning for victims and their families, the low number of convictions for sexual offences against children, do not inspire confidence in the justice system to address these crimes. When a child is sexually exploited or abused, the impact can be devastating and without effective treatment can result in lifelong suffering. It is extremely difficult for a child victim and his or her family to see the offender receive a sentence that does not reflect the seriousness of the crime. The addition of new mandatory minimum sentences and the increase of others will help to achieve this.
The increase in some mandatory minimum sentences and the addition of others will also serve as a deterrent to potential offenders and for those convicted may increase the possibility for treatment options while in custody and provide greater opportunities to engage offenders in treatment, as well as conduct treatment-related research so that we can have a better understanding of sexual offences against children and online offences and the connection to off-line crimes.
In summary, I would like to conclude by saying that as a community agency that provides services to victims of child abuse and sexual exploitation on the Internet, we feel Bill C-10 addresses many issues that are critical to the protection of children from sexual offenders. We feel this bill will significantly contribute to the safety of children from sexual offenders.
The Chair: Thank you very much for that, Ms. Kennedy. Mr. Fletcher, please proceed.
Randall Fletcher, Sexual Deviance Specialist, as an individual: For the past 24 years, I have specialized in the assessment and treatment of people who have committed or are at risk of committing a sexual offence. I have been qualified as an expert witness with regard to assessing the risk for sexual recidivism by both the provincial and supreme courts of P.E.I. In 1994, I was awarded the Lieutenant Governor's award for crime prevention. Prior to specializing in treating sexual deviants, I worked as a mental health therapist with a general practice that included counselling for victims of sexual abuse.
There are two aspects of Bill C-10 that I would like to speak to, and the first is the mandatory minimum sentences. There is a large body of Canadian research indicating that treatment and rehabilitation programs for people who commit all categories of criminal offences, including sexual offences, are effective at reducing re-offence rates, while punishment on its own has been found to have either no effect or, in the case of more severe punishment, a negative effect of increasing rates of reoffending.
I am concerned that the increased demand on resources created by increasing minimum sentences will significantly impair the ability of provinces to put resources into such programs while failing to allow judges to give adequate recognition to the differences between the people who commit sexual offences and the offences that they commit.
I also have the concern it would have the effect of making an offender less likely to enter a plea of guilty, causing the victim to go through the additional trauma of testifying in court.
With regard to clause 115, regarding record suspension, in my treatment of both victims and perpetrators of sexual offences, I have emphasized that it is important that forgiveness be at the sole discretion of victims. For this reason, I strongly support the substitution of the term "record suspension " for "pardon. "
While I am in support of the change of term, I have serious concerns about the removal of the right to obtain record suspension from people who have committed a sexual offence against a minor. Such a suspension is justified only to the degree where there is compelling rationale, for example, if there were scientific evidence of an exceptionally high recidivism rate; if there is evidence that the consequences to victims are greater than for other types of criminal behaviour; if there is evidence that the treatment and rehabilitation programs are not effective; or if it is clear there is little or no difference between the people who commit the crimes.
The recidivism rates for persons who commit sexual offences against minors is not homogenous and, overall, is not higher than the recidivism rates for most other categories of crime. Treatment has been proven to be effective at substantially reducing the risk of reoffending, and recent research has established that for each year a sexual offender remains offence-free in the community, the risk is further reduced.
Also, those who commit sexual offences against minors differ significantly in the danger they pose to children, the risk of reoffending and the responsiveness to treatment. Although the effects of the sexual victimization of minors can be severe and lifelong, there is a continuum of trauma, and the effects are not different from other forms of crimes against children. Research has indicated that the greatest trauma and long-term effects are experienced by children who witness domestic violence, while children who have been physically or emotionally abused experience similar effects to those who are been sexually abused both in type and duration.
There is nothing in what is known about people who commit sexual offences against minors that would establish, in my opinion, a valid reason for denying them a record suspension.
In considering the wisdom of clause 115, it is also important to address the risk of unintended consequences. Labelling theories are concerned with how the identity and behaviour of individuals may be determined by the attachment of a label, which can become a self-fulfilling prophecy in which the person decides "This is what I am. I cannot change, so I may as well accept it. " Clause 115 would deliver the following message: "You have been singled out as one of the most dangerous and damaging members of our society. There is nothing you can do that would convince society that you can be rehabilitated or that you are worthy of suspension of your criminal record. "
It is important to consider the negative effect that this would have on whether or not a person enters a plea of guilty, attends a treatment program or attempts to change his or her behaviour.
An important factor in the rehabilitation of someone released into the community is the attainment of gainful employment. It is well established that a criminal record can be a significant deterrent to obtaining a job. For someone with a record of committing a sexual offence, that is particularly true. To not have record suspension would prolong this difficulty indefinitely.
To summarize, the Canadian justice system recognizes the importance of fitting the punishment and restriction of behaviour to the crime and that people who commit criminal offences differ significantly from one another, as does their offence behaviour. This requires flexibility in allowing judicial discretion, and it must be kept in mind that well- meaning legislation can have the actual effect of making communities less safe.
The increasing of minimum sentences has the potential of removing resources from what has been proven to work in reducing the rates of reoffending while funneling them into what has been proven not to work.
Most Canadians' perceptions of child molesters have been shaped by the sensationalism of the media. The image of the stranger or trusted caregiver who seeks out victims and is resistant to change applies only to a small percentage of those who offend. Although these persons are highly dangerous and require long-term sanctions, it is important that recognition be given to individual differences and that the most effective approach be applied in each case. This can best be achieved by legislation that fully allows for judicial discretion and recognizes that all individuals are capable of becoming productive and law abiding citizens. For those who fail to demonstrate they have done so, the Canadian system already has provisions for longer sentencing and for the denial of pardons.
The Chair: Thank you for that, Mr. Fletcher. We will now proceed to questions from senators, beginning with Senator Fraser.
Senator Fraser: Good morning and thank you both for being here and for testimony that bears a great deal of thinking about.
Mr. Fletcher, you said those who commit sexual offences against minors differ significantly in terms of the danger they pose to children, the risk of their reoffending and their responsiveness to treatment.
When you say they differ significantly, are you talking just about differences as among individuals, or are there classes of offenders who are more likely to reoffend than others?
Mr. Fletcher: Yes, there have been different diagnostic terms used, and they change a little with research. What is currently used most often is the term "preferential child molesters. " Those are people who are actively seeking out children for sexual purposes. They represent a small percentage of the people who do that. They certainly pose the highest risk. They are more likely to reoffend. They require more treatment than others.
The people who are seen in treatment more often represent a bigger percentage and are sometimes referred to as "circumstantial offenders, " people who offend when a certain set of circumstances comes together. They do not have a sexual preference for children. They are able to function sexually with adults, but at certain times they turn towards children in a sexual way. They pose a lower risk for reoffending. They generally tend to be more responsive to treatment.
Senator Fraser: What proportion of people who are convicted of sexual offences actually get treatment?
Mr. Fletcher: It varies from jurisdiction to jurisdiction. Prince Edward Island, where I come from, may be unique. I established a treatment program back in 1988, which is the first one for the province. Since then, almost everyone who is convicted of sexual offences is assessed, often prior to sentencing, so the court has the benefit of that assessment's recommendations, and gets treatment. It differs in other places. As far as I know, P.E.I. is the only province where there is actually provision for making that available to everyone.
Ms. Kennedy: I am not sure what the actual percentage would be, but I know in Toronto only the highest-risk offenders are likely to get treatment.
I want to make a point in response to that. For me, it begins with accountability, and if an offender was taking responsibility and being accountable, then there would not be a need for the criminal justice system to function in the same way. They would be willing to go into treatment right from the very beginning. In my experience, most of the offenders that we see going to treatment are ones that do not go in willingly but have to be sentenced. There have to be treatment orders, so I think that is something that needs to be taken into consideration as well.
Senator Fraser: When the treatment orders are given in Toronto, what do they consist of?
Ms. Kennedy: I cannot speak to that specifically because that is not my area of expertise, but generally, if there is a treatment order, it is to comply and participate in treatment until it is complete.
Senator Fraser: I am wondering whether those programs are in fact long enough. If you just have to go along for a couple of months once every two weeks, a bit of groupthink and then you have completed your course, that may or may not have the desired effect.
Mr. Fletcher: Maybe I can shed light on that. If someone gets a provincial sentence of two years less a day, then at least in P.E.I. they almost universally get a period of probation. A probation order can order a person to attend treatment. With a federal sentence, if the person attends treatment it is voluntary. There are certainly incentives for doing it. They are more likely to get day parole, but there is nothing that can actually require the person to attend treatment. For that reason, treatment is a little bit easier to enforce with provincial sentences.
In terms of the length of time, the program that I run goes approximately 20 to 25 weeks. In terms of its effectiveness, the five- to ten-year recidivism rates for people who have completed that program run between 3 and 4 per cent. That is a substantial reduction. I know from speaking to Dr. Bill Marshall, who developed many of the programs in the federal system, that their rate is similar; it is 5 per cent. Their treatment programs are a little longer but they have people there for a longer period of time.
It does not seem to be the length of treatment. Obviously, there is a certain minimum you need, but it does not have to be very lengthy as long as it is effective. It does not have to be very lengthy to be effective.
Senator Fraser: Obviously, in the back of my mind is always the question of resources, resources, resources. There are never enough.
Mr. Fletcher: That is a concern I have. The treatment program I run is community-based. Although I work for the Attorney General's department and the Department of Justice, it is a building based in the community. Correctional officers bring people there for the assessment and for the treatment. That requires extra shifts. My concern is that when more money goes into employing correctional officers in their regular duties and creating jail cells, there will be less money available for treatment.
Senator Runciman: Mr. Fletcher, when you have been dealing with individuals convicted of sex offences against children, is it usually the case that they suffer from pedophilia?
Mr. Fletcher: No. In North America, the Diagnostic and Statistical Manual of Mental Disorders is what is usually used in making a diagnosis. It is very specific that pedophilia applies to someone who has a pervasive or ongoing sexual interest in prepubescent children — children whose bodies are like a child's body. It cannot be just a temporary thing. Most people I see do not fit that diagnosis.
Senator Runciman: Temporary pedophilia — I have never heard that term.
Mr. Fletcher: No; if fact, you cannot diagnose it by the criteria of the DSM if it is a one-time thing. As I said, there is a big difference between people with a sexual preference for children and people who turn to children sexually under certain circumstances.
Senator Runciman: You are saying that not everyone who has been convicted of these offences suffers from pedophilia. Quite a number do. Can you give us an indication?
Mr. Fletcher: I was saying certainly fewer than 50 per cent. They are more the exception than the rule.
Senator Runciman: Pedophilia is not curable?
Mr. Fletcher: The term "cure " does not really apply. It is not a biological disease. It is a behavioural choice. You can change the choices that people make. Even people I have seen who do fit that diagnostic category have responded well to treatment and, as far as we know, have not reoffended.
Senator Runciman: You were saying you have difficulty with the mandatory minimum sentences. We have had some examples here, and I have one from this month in British Columbia. I will not mention the individual's name. It was in Nanaimo. He was sentenced to house arrest after pleading guilty to five counts of sexual assault involving four children, aged 7 to 14. The assaults took place over a two-year period when the victims were invited to this individual's home for play dates with his child. Among the victims was an 11-year-old mentally challenged girl. He gets to serve two years less a day in the comfort of his own home, which also happens to be the place where he perpetrated his crimes.
In essence, you are saying from your perspective you do not see anything wrong with that?
Mr. Fletcher: No, that is not at all what I am saying. I think someone like that should receive a longer sentence.
Senator Runciman: The point is that the courts are not doing it. That is what this legislation is trying to address.
Mr. Fletcher: I am not sure that the solution is making mandatory minimum sentences, because I can certainly cite a number of cases where house arrest would be appropriate. Maybe what is needed is having some better guidelines around sentencing and how to apply them, and the education of judges. My bigger concern is that provincially it will take dollars away from what we know works in terms of preventing new victims.
Ms. Kennedy: The kind of case that Senator Runciman is describing is the kind of case we see all of the time. Those are not the exceptions. In my experience, and we see thousands of children come through our doors, very few of those cases result in convictions. Not only is there no sentencing but there is no conviction.
When there is a sentence of house arrest, and I have seen cases where the child is actually living across the street, it is devastating for a victim to have been able to get up the courage to tell someone what is happening and then to see that result. There was a comment earlier about mandatory minimum sentencing being a deterrent to reporting. The exact opposite is true. If victims feel there is likely more of a chance that there will be some sort of sentence, then they are more likely to come forward than they are as things stand now.
Senator Runciman: Ms. Kennedy, another issue that has been raised by some critics of this legislation is the cost of incarcerating more people. We know the bill is intended to incarcerate more child molesters. That is one of the intentions with this legislation. Perhaps you could speak briefly to the cost to society of child abuse.
Ms. Kennedy: Absolutely. It is enormous. Not only are you seeing children who require treatment at the time that they disclose the abuse, it has effects on their whole family. It has effects on their ability to learn in school, so there are costs to the education system and the health care system. They may or may not be able to function in terms of employment when they grow up.
Treatment does make a difference, and just like wait lists for everything else, there are wait lists for child sexual abuse victims. My bias is, of course, for the victims. I am more concerned about the resources allocated for victims, but without changes to the law we are going to continue to see more victims. There is not the same deterrent that there needs to be in the system.
Senator Dagenais: I want to thank our witnesses. My first question is for Mr. Fletcher.
When a child is sexually abused, we know that the person charged often comes from the victim's immediate surroundings, be it a family member or a friend.
Do you not think that a longer sentence could keep the offender away from the child, allowing it to recover more quickly? With a shorter sentence, the offender could return to the child's environment in less time. I would like to hear what you think about that.
Mr. Fletcher: You have to face the fact that even when the person is removed from the family, they get out of jail; they form new families; they have access to additional victims. We are dealing with something that is very complex. It is hard to always apply a one-size-fits-all approach to the needs of victims as well.
In Prince Edward Island, about 15 years ago there was a study done that looked at how we are responding to victims of sexual offences and their families — how good a job are we doing. One comment that came out of that is that victims were not being listened to when they said, "I want to have contact with this person. " It is very hard for a child to write off the importance of a parent. Sometimes the person who abuses them is someone who meets other needs in them quite well. That is not always necessarily desirable. The problem you get when you try to apply a one-size-fits-all approach is something that is very complex and where the needs differ greatly.
Senator Dagenais: With your indulgence, Mr. Chair, I have one last question for Ms. Kennedy. Madam, in your brief, you say that it is important to reduce the impact of a sexual offence on a child. Could you tell us how sexual abuse may affect a child's life and, later, their adult life? I would like to hear your thoughts on that.
Ms. Kennedy: Certainly. One of the greatest impacts on the child is their feeling of guilt and shame and responsibility for the abuse. Children feel they must have done something wrong in order to have invited this, and what can make a significant difference is if the offender takes responsibility and accountability. When we see a case going forward to trial, obviously the offender has not taken responsibility or we would not be in a situation where there was going to be a prosecution.
This speaks to Mr. Fletcher's point about children who do want to have contact with their offenders. We see that happen, but in order for that process to even begin there has to be that accountability and responsibility, and that will make a huge difference for the child in shifting that burden of blame and responsibility and allowing the child to believe that they were innocent and did nothing to invite the abuse.
The other factor is the support that they receive, and sometimes there is more support for the child than there is in other cases, but a child who feels believed, supported and not responsible for the abuse is in a much better position to be able to move forward and live the kind of life they should have had.
Mr. Fletcher: Could I just comment on that briefly? There seem to be some differences perhaps provincially. In Prince Edward Island, it is unusual for someone charged with a sexual offence of a child not to have a conviction. In fact, it is unusual for them not to plead guilty. Very few cases go to trial. I agree with Ms. Kennedy that that is very beneficial to the victim. The treatment program that I run does have a provision to take that further where the law allows it where the offender will also give acknowledgment to the victim in which they say, "This was not your fault; there is nothing you did to cause my behaviour. I am not angry at you for reporting this. I am getting the help that I need. " In my experience, that has been tremendously beneficial to the victim.
Senator Chaput: I can say with certainty that no one is against sending child abusers to prison. No one is against punishing those who abuse our children. That is a very serious crime. Statistics show that most children rarely report their abuser. How can Bill C-10 achieve its objective of punishing child abusers when children have a hard time reporting them?
Earlier, we heard about awareness-raising programs in schools and communities to educate children about those types of situations. Although those programs require a lot of resources, they are necessary. My understanding was that Bill C-10 did not focus on that issue. How could it focus on it? Otherwise, I feel that we will not achieve our objective.
Ms. Kennedy: It is a very good point, and I am not sure that Bill C-10 can do what you are asking because there is not just one solution. Prevention is absolutely critical. We do not have any kind of universal prevention programs in this country, or even in any one province, that are best practice and evidence-informed. That is one area. We need, from the earliest opportunity, to teach children they should come forward and tell whatever the problem is. It is not specific to child abuse. It is primary prevention, teaching them they can tell someone if they are uncomfortable with any situation.
However, in terms of Bill C-10, what will make a difference for children coming forward and reporting is if they know that something will be done, that if there is a conviction there will be some sort of sentence, because many children, especially the older children, feel what is the point, nothing will happen, the offender will not be held responsible.
I think increasing the sentencing and mandatory minimum sentences will make some difference, but it is not the only solution.
Senator Chaput: Do you have a success story you can share with the committee today?
Ms. Kennedy: A success story of?
Senator Chaput: Regarding helping children to talk about the abuse?
Ms. Kennedy: Certainly. We deliver programs in elementary schools across Ontario, specifically in the Toronto area but elsewhere as well, and they are programs that train teachers how to deliver the information so there can be ongoing programs integrated into the curriculum in Ontario. There are many children who, once they hear that they can tell, that there are adults who will listen to them, will come forward. We have children every day in schools in Toronto who are disclosing sexual abuse, witnessing family violence, all kinds of other forms of abuse because they have heard the message that someone is there to listen to them.
Senator Chaput: Is this done provincially, or is there help from the federal government?
Ms. Kennedy: There is not help from any form of government for the prevention programs we deliver now.
Senator Chaput: Where does the money come from?
Ms. Kennedy: Some of the money from fundraising, some from time-limited grants, but in my experience, and I have been at Boost for 25 years, there has never been dedicated funding from any level of government for prevention. There is funding for treatment, and there is funding for child witness preparation when children are required to testify, but there needs to be a significant investment in the prevention area.
Senator Chaput: Should funding be earmarked?
Ms. Kennedy: I believe so, yes.
Mr. Fletcher: If I could comment on that question as well, one thing I find when I speak to colleagues in other jurisdictions is that I have an unusual number of people who seek treatment without having been reported or having been charged with a sexual offence. I suspect that is because I do a great deal of public education around this and help offenders to see that this is a treatable problem, that you can be dealt with in a non-judgmental way. Certainly we judge your behaviour, but we do not judge you as a person.
The State of Vermont quite a number of years ago, under the initiative of Fran Jefferies, started a program called Stop It Now! They do public ads in which they will perhaps show pictures of children and there will be a quote from someone who has molested a child who says something like, "Four years ago I would have been turned on by this picture, " and then there is a hotline they can call where they can find out where help is available. My understanding is that has been effective in having a number of offenders come forward without being reported, without being treated. That is another avenue for getting at that.
I do not disagree at all with Ms. Kennedy about mandatory minimums having some effect on making children more likely to report, but I can tell you that as part of my job, prior to seeing an offender and looking over the results of the investigation, I also read victim impact statements where the victims talk about the effect it has had on them and what they would like to see happen. As often as I see them saying, "I want this person to go to jail, " I see them saying, "I want this person to have to go for treatment. " I do not think that is necessarily because they care about the person. It is another way of saying what was done was wrong, this person has a problem, there is something wrong with them, so that is another way of giving that acknowledgment.
Senator Frum: Mr. Fletcher, on the issue of mandatory minimums, you discuss how you feel they have no effect in preventing reoffending, but again, and this is turning it around, they do have an effect in giving comfort to the victims, and I will share my own personal perspective because unfortunately I have had some exposure to this issue.
I had an experience about 10 years ago, when my son was in grade 2, where a trusted caregiver was convicted of possessing and distributing child pornography. This is a person who sought out a job working at a school for boys. He was given six months' house arrest, but his house was in the same neighbourhood as the school and in the same neighbourhood where my son and I live.
I can tell you, just to give my own victim impact statement, I was outraged by this and extremely uncomfortable and angry at the thought that I — or worse, my son — might encounter this person, after we found out this person, in whom we had placed so much trust and affection, had betrayed us terribly.
Putting people in jail who commit these kinds of crimes is not just for their sake but for the sake of the victims and the people who potentially could be hurt if they continue to have conditional sentencing and, worse, if they do not keep a record of these crimes. These people who generally like to do these kinds of things often seek out jobs where they will work with children. If it is not on their record it will continue to happen.
Could you respond to that, please?
Mr. Fletcher: I should say that I believe that anyone who commits a sexual offence against a child should serve jail time. It is a case of fitting the amount of time to the circumstances of it. We are dealing with a very complex matter here, where you have to weigh one thing against the other.
Obviously, from the treatment perspective, my bias is what will ensure that more and more people get treatment. In the long run, that is the best way that we can make for safer communities.
In terms of having it on your record, yes, certainly that is important, especially when you talk about the predatory or preferential type of child molester. I think it is important that they be barred from certain activities where they can have access to children.
However, if you are talking about record suspension, parole boards already have the ability to deny that to them. They have the ability to look at whether the person has been successfully treated, has been rehabilitated and whether they still pose the same level of risk. The people who are a risk can continue to be denied that and have that on their record.
I think it is important, for any type of crime, to recognize that everyone can be rehabilitated and that there is a need to get on with their lives. Being able to do that is part of what makes for the community being safer.
Ms. Kennedy: I will add to that. I wanted to comment on the distinction Mr. Fletcher made earlier of circumstantial offenders as opposed to pedophiles or predatory offenders. I think they are all dangerous, and it is not just that the circumstances allow this to happen. These offenders plan what they will do. They plan every single step of it, whether it is because the circumstances allow it or not.
I have heard many offenders talk about the detail that goes into their planning, the timing, how long it takes for mom to get down to the laundry room in the basement of the apartment building so they know exactly how much time they have. We must be careful not to underestimate those situations.
For many children, knowing the offender is back in the same community, living on the street and in the same neighbourhood, potentially going to the same church — that has happened in many cases that I have seen — is devastating. We do need to do more to ensure kids feel safe.
Mr. Fletcher: I agree with Ms. Kennedy that the preferential type of molester puts a great deal of effort into the planning and grooming of victims, but they are the exception.
For many of the people I see, often the first time they do this is impulsive. It was not planned in advance. Usually afterwards they say to themselves, "That was stupid; why did I do that? " and "I will never do it again. " They do not expect to do it until the circumstances arise again. There are very significant differences. I agree that they all pose a degree of danger, but not the same degree.
Ms. Kennedy: To clarify, I was not saying it was only predatory offenders who plan. I was saying it is all offenders, including circumstantial offenders, who do that planning.
Senator Jaffer: I want to clarify something that you said, Ms. Kennedy. It is my understanding, and I have been working in this field for over 40 years, that not all sexual assaults against children are reported. There is an under- reporting of sexual assaults; would you agree?
Ms. Kennedy: Absolutely. In my experience, and from what I have read in the literature, about 90 per cent of the cases go unreported.
Senator Angus: Ms. Kennedy, you have indicated the efforts and good work you do at Boost to encourage these young victims to come forward and report. I have been reading that there are also cases where some of these children give false accounts, in other words to get attention or for some other reason.
Have you run into this, and how do you differentiate when it is a case like that where the kid sort of comes up with a story to create attention for him or herself? I do not know how it works.
Ms. Kennedy: In my experience, those cases are very rare. We have in Toronto — and I am certain this happens in other parts of the country — extremely well-trained forensic interviewers, both child protection workers and police officers, who do this work every day, know how to interview children and know how to determine whether the information they are giving them is credible or not. There is a lot of work that goes into that process. If a child were simply making it up for attention, I think that would be determined pretty quickly by the investigators.
The other point is that no one wants to talk about sexual abuse or some intimate act having been committed against them by father, grandfather, neighbour, uncle or teenage babysitter. Kids usually lie to get out of trouble, not to get into trouble, so it is extremely rare that those cases actually happen.
Senator Angus: Good, so it is not a big problem really, and such as it is, it is well under control?
Ms. Kennedy: Yes.
Senator Angus: Mr. Fletcher, I have been intrigued by your description of yourself as a "sexual deviance specialist. " Could you give us a little of your background? Are you a psychiatrist?
Mr. Fletcher: No, I have a master's degree in clinical social work. For my background, I worked for a number of years in a mental health setting; I ran a mental health clinic. As I mentioned, I also counsel victims of sexual abuse.
In 1988, largely because of my work with victims, I was concerned that you try and help them recover from the effects of that, knowing there are people out there who are committing new offences and creating new victims. Partly because of that, and partly because there was no treatment available in P.E.I., I went and got some training in that and developed a treatment program for that.
The actual term "sexual deviance specialist " was not my choice: The province came up with that. Sometimes it is a source of embarrassment for me, especially if it is spelled incorrectly.
Senator Angus: I would have thought so.
Mr. Fletcher: Yes, when it is spelled "deviant " rather than "deviance, " it is embarrassing. I kind of got stuck with that.
As far as training, there are no university degrees in it. You have to get the training by working with other people in the field and by attending training sessions. My professional organization, ATSA, the Association for the Treatment of Sexual Abusers, which has about 2,000 members worldwide, offers training opportunities every year. You go to those, and you gradually develop the expertise.
Senator Angus: When you say your professional association, it is a branch of social work generally, is it?
Mr. Fletcher: No, actually the professional association has psychologists and psychiatrists. It is multidisciplinary and is composed partly of researchers. Some of the people who will be speaking to this committee later on will belong to that association. In fact, I believe Lawrence Ellerby, the president of the association, will be testifying by video conference later on.
Senator Angus: What is the association called again?
Mr. Fletcher: ATSA, the Association for the Treatment of Sexual Abusers. It was founded in Beaverton, Oregon, quite a number of years ago. Ultimately, the goal is to protect children, to make that less likely.
Senator Angus: Is that your full-time avocation, vocation?
Mr. Fletcher: That is full time, yes.
Senator Boisvenu: My question is for Mr. Fletcher. I invite you to read the brief provided by Ron Langevin, forensic psychologist, also an expert in this field, when he appeared before this committee a few years ago. One of the things he says in his brief is that the rehabilitation of sexual criminals is among the most difficult to achieve. Statistics on rehabilitation are among the least accurate. He considered over 2,000 cases. Ninety-three per cent of those 2,000 federal court cases on sexual assault involved people who had been convicted by a provincial court. Yet, those cases are not included in the recidivism statistics.
In Canada, there are three types of courts. Municipal courts can handle cases of sexual assault in large cities like Montreal. Governments have delegated some of those proceedings to municipal courts. Provincial courts handle cases involving sentences of less than two years. The Federal Court handles cases involving sentences of over three years. The psychologist said that those three court levels do not share information or communicate. Therefore, nearly 90 per cent of sexual predators in federal penitentiaries have already committed crimes. However, they are not included in the recidivism statistics because the three court levels do not exchange any information.
I want to talk about two major studies conducted in Canada. One of them was done in British Columbia in 2006 and focused on 700 sexual predators. Half of those people participated in a rehabilitation program at the penitentiary, and the other half did not. Twenty per cent of those who took part in the program reoffended. Twenty-one per cent of those who did not take part in the program reoffended. This psychologist, who has been working in the Canadian prison system for 25 years, concluded that rehabilitation programs for sexual predators in federal penitentiaries have no impact on recidivism.
Here is my question. Quebec prisons have four times as many sexual predators as federal prisons, proportionally speaking. However, no rehabilitation measures are provided in Quebec prisons to support sexual predators and monitor their deviance and behaviour.
You said that pardons should not be eliminated for those people. You said we should be careful because, if they cannot obtain a pardon, they will not be able to find employment. Mr. Fletcher, when a pardon is granted to a reoffender who has committed three or four crimes, his or her record disappears from the police radar. Let us consider the case of a sexual predator who has been pardoned and is hanging around a school. If a police officer follows that person and checks their licence plate, the person's past sexual crimes will not show up.
Therefore, would it not be cautious on our part, as the government, to ensure that reoffenders who have committed three or more sexual crimes can no longer apply for a pardon, so that our children and community are protected?
Mr. Fletcher: You raised a number of points there, so I will try to address them one at a time. First, I certainly encourage you to ask that same question of Dr. Karl Hanson, who will be appearing before the committee in the future. He is internationally recognized as an expert in the field of recidivism and has developed the most frequently used tools for predicting the risk of recidivism. He will be better able to address some parts of your question than I will.
Early studies on the effectiveness of treatment almost universally concluded that treatment had not been proven to be effective. That is not the same as saying that it is not effective. It has to do with statistical significance, with having enough numbers to be able to say this is not happening by chance.
In the year 2000, under the Association for the Treatment of Sexual Abusers, ATSA, Dr. Karl Hanson did a meta- analysis of all studies involving treatment. He had the numbers and was able to show significantly reduced recidivism rates. That was a modest result, given that not all treatment programs are equally effective and not all offenders pose the same level of risk, but he did show a significant result.
In terms of determining whether or not treatment is effective, we look at the predicted rate of reoffending without treatment, and we compare that to what we know about the rate of reoffending after treatment. What we see is a significant reduction in that. What we cannot do is tell you what the absolute rate is — no one can, any more than you can for any category of crime.
For most people who commit sexual offences, rehabilitation is effective. I see tremendous and significant differences in the people whom I treat as they go through the treatment program. There is no doubt in my mind about that. We have to recognize that and say that this is not different from other categories of crime. People are capable of being rehabilitated and becoming productive members of society. The parole board now has the ability to deny that to people where they have any doubt at all about whether or not the person has been rehabilitated.
Senator Cowan: Senator Runciman and Senator Frum referred you to a couple of cases where the sentences were served in the community and the offenders were in close proximity to where the crimes had been committed initially, and I am sure that would have been terribly disconcerting, upsetting and difficult for people who knew about it and who lived in those communities.
Without knowing more about those particular cases, in that kind of situation surely it was open to the trial judge to impose a prison sentence, and yet for whatever reason the judge chose to impose a different kind of sentence. Surely it was open to the judge, under our current criminal proceedings, our code and our sentencing regime, to impose a sentence of imprisonment; is that not correct?
Mr. Fletcher: Certainly it is.
Senator Cowan: This is the point I would like you to get to. When Mr. Matas was here earlier — I do not know whether you heard his evidence — he said that in addition to incarceration, which clearly plays a role in dealing with offenders, we could perhaps deal with sentencing guidelines, with a sentencing commission, and with more education for judges, so as to make them aware of the importance that society puts on harsher treatment and harsher consideration of people who offend in this area.
Mr. Fletcher: I think there is a lot that can be done in terms of educating not only judges but also Crown attorneys. Often the information the judge gets is limited by what the Crown presents and what the defence presents.
As I have said, in P.E.I. it is unusual for someone who is charged not to be convicted. It is unusual for them not to get a prison sentence. I suspect that is because a lot of education has been done in P.E.I.
P.E.I. is unique in terms of being a province of only 138,000 people. Although I am the only person who deals in this area, that is a pretty good ratio compared to other places. I have been able to do a lot of education, particularly because the majority of adults who plead guilty and who are convicted have an assessment order prior to disposition. I can give the judges a lot more information than what they would get otherwise, and so they are able to tailor their decision more to the needs of the situation. Often my recommendations have to do with the need to limit contact with victims and things of that nature.
There is a lot that can be done there. I do not know how Bill C-10 can address that, but there is certainly a lot that can be done. I would offer P.E.I. as an example of how we can deal with this more effectively and in a more discriminating way that accounts for the needs of victims as well as the need for rehabilitation. It can be done.
Ms. Kennedy: I think that it has a lot to do with myths and perceptions that not only judges but also the community have about who offenders who sexually offend against children are. When someone comes before the courts, often they have no previous criminal record; they have not come to the attention of police before. They are upstanding, working members of society who contribute, and I think judges often see this person in a different way than they might see offenders of other crimes.
In Toronto, in the central part of Ontario where we work, it is the exception for someone to actually be convicted and sentenced to jail time. In my experience, unless there is a guilty plea, there is no conviction, and when there is a conviction, generally very few sentences include jail time.
I think having minimum mandatory sentences does take away some discretion from the judiciary, but I think that is not bad. It takes out the bias that they might have toward this type of offender, and it sends a strong message to the victim that the crime is serious and has been taken seriously. I think it does act as a deterrent. Many youth are offending against children. That is a population that we are seeing increasingly. I think the more that we can send messages to those youth that there is a penalty when you do this, it may act as a deterrent with that group as well.
Senator Cowan: Would you agree that it is not one solution or one answer that will solve the problem here; it is multifaceted and complex and, as you suggest, with respect to children, it is particularly complex?
Ms. Kennedy: Yes; absolutely.
Senator Lang: First, to Mr. Fletcher, I think we all appreciate the difficult area that you work in, to some degree at any rate. You refer to all the situations being complex. I, for one, and I would suspect most viewers, do not see it as being that complex. They see it as a situation where a child has been abused, where his or her life is going to be affected forever, and there should be some repercussions and accountability for those who would commit such an offence.
You indicated to us that the minimum treatment for an individual who would commit this type of offence — and it is an offence — is 25 weeks and maybe longer. This legislation is recommending a mandatory minimum sentence in most cases of one year. It would seem to me that that would allow for treatment and also have the repercussions of some accountability. At the same time, it would take that individual away from that community so that the young person who has been victimized — that is who we are talking about here, that young girl or that young boy — would have some comfort, when they go to bed at night, that this particular individual would not be two blocks down the street and that offence might happen again, maybe within a week or within a year. I would like you to comment on that.
Mr. Fletcher: First, I want to clarify. I am not suggesting that the mandatory minimum sentence should be 25 weeks. The question I was addressing was how long was needed for effective treatment.
I am not against someone serving a year for their offence. My concern is that it will take away dollars away from treatment, which we know in the long run will be the best thing to make communities safer. To me, whether a person serves six months or one year, I do not see that as making a difference. I am not opposed to that length of time, other than that it takes away dollars from treatment.
When I talk about being complex, it is a simple matter; it is black and white. This is a wrongful thing. It is something that we have to deal with seriously and effectively. We have to do everything we can to reduce the incidents of it. The complexity comes in when you look at the individuals who do it — and they differ in a lot of ways — and the also the effects it has on the victim. There is a whole range of trauma that it can produce.
I was exposed to a sexual predator when I was about nine years old. It was a brief experience and it was something that I put out of my mind as something that I did not understand. I do not think it affected me and I do not think I recognized it as abuse until I was an adult working in this area. I am not saying that is always the case, but there is a range there. When you are dealing with something that is complex in that forum, it is a problem when you start saying "a one-size-fits-all approach. "
Senator Lang: I would not say that it is one-size-fits-all because the discretion is to the courts after one year for the severity of the crime. However, it sets the moral bar for the minimum, what society says about that particular offence and how we see it as people, as neighbours and as friends.
Mr. Fletcher: If I thought that federal dollars would be going to the provinces in the treatment programs so that they can sustain those even with the minimum sentences, I would have much less objection to the minimum sentences.
Senator Lang: I want to make this point from the point of view of the federal government and the provinces: There have been substantial increases in transfers over the last number of years, billions of dollars, but it is the decision of the province where they spend that money, not the federal government.
I want to go to one area touched on by Senator Jaffer, and that is the question of reporting. These particular offences throughout society are under-reported — I think that is the terminology. In effect, for about 40 per cent of them, or even more, there is no reporting at all because of fear and other reasons why these children, these girls and boys, do not report this type of offence. What I do not quite understand is when you look at Bill C-10 and at the mandatory sentencing of a minimum of one year that is not there now, it would seem to me that it would be another tool out there or another reason for a young boy or girl to come forward to report because they know there is a consequence at the end of the day with this individual if they go through the court system. Right now, it is not fair.
I would like to hear your comments about how you would argue against that if you are for increasing the number of children to make them feel comfortable to come forward and report and to know that there is a consequence and that he or she will not be in my neighbourhood for at least a year. I would like to hear Ms. Kennedy in response, please.
Mr. Fletcher: My concern would be that it may have the effect of making someone less likely to plead guilty knowing that they are going to serve at least a year in jail. That puts the victim through additional trauma if it goes to trial. That can be traumatic to children, even when they are given a lot of support. Sometimes, it can result in the victim recanting the allegation. You have to balance one thing against the other. That is partly where my comment about complexity comes. You may think you are doing one thing when, in fact, you are doing that but you also have unintended consequences attached to it.
Ms. Kennedy: I think that a mandatory minimum sentence will increase the number of victims that are coming forward. We have seen that when a victim discloses that the offender is out of the home or the community or the school, then you have more victims coming forward. If you were able to send a message to victims that these crimes will be taken more seriously and there will at least be a mandatory minimum sentence to hold the offender accountable, then it will increase the number of victims that feel comfortable talking about what has happened to them.
Senator Jaffer: You have said that a number of times this morning. Do you have any research to show that victims would come forward?
Ms. Kennedy: We have actually begun to do some ourselves, but I do not have any at this point, no.
The Chair: The final question on the first round is to me.
Mr. Fletcher, you have done a lot of work and you have lived this. We are all trying to find solutions and help prevent victimization. I know you are working very hard at that within the work you do. I was interested when you said that you believe anyone who is found guilty of a sexual offence against a child should serve time. That does not in itself seem unreasonable. When you said that, it reminded me, in this discussion around mandatory minimums, of the reasonableness of the mandatory minimums and specifically what mandatory minimums are proposed in Bill C-10 as they relate to these particular issues.
I will refer you to a couple of examples. You are probably well familiar with them, but I will just refer you to them, and Ms. Kennedy as well. It depends with these particular offences whether it is prosecuted summarily or by way of indictment. Of course, indictment would be for the most grievous of circumstances, the most heinous circumstances.
For example, the proposal would increase the mandatory minimum for sexual exploitation in the range from summary to indictable; sexual exploitation, the range for the minimum would be 90 days to a year; publishing child pornography, the minimum would be six months; Internet luring, the range would be 90 days to a year; indecent act in the presence of a person under the age of 16, 30 to 90 days; sexual assault with a weapon against a person under 16 years of age, the maximum there would be five years.
I am wondering what your comments are on the reasonableness of those particular suggested proposed mandatory minimums. Do they seem reasonable or unreasonable in the circumstances? Ms. Kennedy, I would appreciate your comments as well.
Mr. Fletcher: As a punishment for a crime, they certainly seem reasonable to me. I think there are some exceptions where perhaps they might not be, but those are the rare sorts of things. Maybe if there were some provision where judges could make some exceptions to a mandatory minimum, it might help, but I do not see anything unreasonable in those lengths. As I say, my concern is the concern of unintended consequences.
Ms. Kennedy: I would agree. I think they are reasonable. There are some that perhaps could go a little further, but I do think overall they are reasonable.
The Chair: Thank you very much. That concludes our discussion with Mr. Fletcher and Ms. Kennedy. Your contribution is vital to the work we are doing, and we very much appreciate it.
Honourable senators, we will begin this session of our continued consideration and study of Bill C-10. In particular, with this panel, our third panel of the day, we will continue to focus on Part 2 of Bill C-10, which relates to sexual offences against children.
We are very pleased to have with us today, from the Comité des orphelin(es) victimes d'abus, Mr. Lucien Landry, President, and Mr. Tony Doussot, Secretary. Welcome. From the Kids Internet Safety Alliance, we are very pleased to have with us Mr. Paul Gillespie, President and Chief Executive Officer. Welcome.
Gentlemen, we will start with opening statements. Mr. Landry, I will start with you. Please proceed.
Lucien Landry, President, Comité des orphelin(es) victimes d'abus: Good afternoon and thank you for having us, members of the Standing Senate Committee on Legal and Constitutional Affairs.
I would like to begin by introducing our organization to provide you with some background.
Our organization represents people who lived in the orphanage network, nurseries and religious community institutions from 1930 to 1965. The Comité des orphelins victimes d'abus more specifically helps the Duplessis orphans.
As I told the committee clerk, we also represent associations of people who have lived in other establishments across Canada, such as Mount Cashel, Port Alfred and a number of other non-aboriginal institutions. That is referred to as the "Indian residential school file. "
Our organization has created a Canada-wide coalition to represent those people. We are the voice of those individuals, who are now mostly over the age of 50 and are still suffering the consequences of the abuse they endured in their youth.
We are not the only ones to take an interest in this matter. The Canadian Human Rights Commission prepared a lengthy report on the problem of children who have lived in those institutions across Canada. Our organization has several cases that relate specifically to victims.
I will now talk about our concerns when it comes to Bill C-10. From the very beginning, in September, we attended the presentation by the Minister of Justice and the Solicitor General of Canada. We were also there when Senator Boisvenu held a press conference to announce Bill C-10. We expressed an interest in participating in the study of this bill by the House of Commons in order to discuss a specific aspect of this case.
I want to point out that we may not have the skills or the expertise required to consider all of Bill C-10. Our main concern more specifically relates to the part on sexual predators and imposed sentences.
Our second concern is about the access to justice mechanisms for those victims. They are poor and do not receive much support in dealing with the justice system, unlike criminals, who, if found guilty, are provided with the resources they need to argue their case before the courts.
Access to justice is not evenly balanced. There have been a number of similar cases in Quebec just recently, such as the case of Ms. Christensen before the Supreme Court. We followed those proceedings.
Third, we are especially concerned about the assistance and support provided to victims. We ask that you, Mr. Chair and all the members of the committee, learn more about the substantial, urgent and essential needs of victims.
I am speaking from the heart because we are those very people who we represent and who are too often voiceless. Their problems are so overwhelming that they suffer rather serious consequences, and I think it is important to provide various organizations with the means to give victims the help they need.
Mr. Chair, those are the three points I wanted to focus on.
Tony Doussot, Secretary, Comité des orphelins(es) victimes d'abus: I want to wrap up the presentation by saying that we have always been in favour of real prison sentences, imposed to their full extent on sexual predators, on pedophiles. It is known where pedophiles are, they just have to be brought in. For instance, they are found in certain religious communities. A good deal of documentation supports that. The Duplessis orphans are not an isolated case. At least 341 real complaints were submitted, but they were unfortunately buried by the Government of Quebec, by Quebec Crown prosecutors. Today, real sentences can be imposed. Pedophiles can and must be imprisoned and they must serve out their full sentence. We want to stress that.
The same goes for accessibility to justice. In the Christensen case Mr. Landry mentioned, 11 lawyers defended the archbishop, the diocese, the episcopal nunciature and the government. And on the other side, the poor victim was alone, abandoned and penniless. Today, her health no longer allows her to fight. The church has won. The pedophile has won. That is unacceptable. Today, Ms. Christensen is no longer able to fight because she has no money left and is in poor health. The church has won because no one was left to fight. That is our main message.
Paul Gillespie, President and Chief Executive Officer, Kids Internet Safety Alliance: Mr. Chair, ladies and gentlemen, good afternoon. It is my pleasure to be here today. My name is Paul Gillespie and I am the president and CEO of the Kids Internet Safety Alliance, or Kinsa. Kinsa is a registered charity that I co-founded that works with global law enforcement and other partners to deliver training and build capacity for police in developing nations so that they too can protect and rescue child victims of abuse whose images are shared on the Internet.
I retired from the Toronto Police Service in 2006 having spent my final six years as the officer in charge of the child exploitation section, where I was surrounded by an incredible team. During that time, I contacted Bill Gates and led a global police partnership with Microsoft that continues today as we build the Child Exploitation Tracking System and the intelligence database allowing police around the world to work together on these very complex cases. I am a member of the INTERPOL Specialists Group on Crimes against Children.
Kinsa works with the RCMP and Canadian and global police and to date has trained officers from Indonesia, Chile, Brazil, Romania, Poland, Malawi, Mozambique and Zambia in all of the latest cybercrime techniques — the CSI methods being used by the FBI, Scotland Yard and INTERPOL, some of which you have heard about during this process. We are now focusing our efforts on South Africa. We are in the process of opening up a Kinsa office in partnership with a South African police service so that we can train officers from every African country in a safe, secure South African police service facility. You see, there are keen, eager cybercops all over the world hungry for the specific knowledge about how to investigate these horrific crimes, and they can do so trained in the knowledge that we possess.
The committee has heard that a recent investigation covering parts of Ontario for just three months revealed that almost 9,000 computers were trading in the most explicit images of child abuse. Extrapolate those numbers over time and across Canada and around the world and it is clear that there are tens of thousands of Canadian children at risk because of the relationship between those who collect child pornography and those who are actually hands-on offenders. The numbers are staggering, and the risks are grave. Children will be sexually abused and suffer daily with the stark reality that images of their sexual abuse are being traded online and around the globe. Bringing online child sexual predators to justice is, therefore, a top priority for law enforcement.
Certainly we must educate parents and children too about the dangers of online child abuse, but all the education in the world will not take away the inherent vulnerability of children, so the problem of Internet child abuse will not go away without bringing to justice the many thousands who sustain the market for child abuse images and the importance and influence of such deterrence.
Thus, the central question to be asked is this: How can police hunt these predators most effectively? Perhaps it means, surprisingly, doing what would be objectionable in the physical world, training cybercops in the online information highways in other countries; and why is this so?
Starting with a now trite observation that Internet activity of all kinds is without borders, every cybercop will tell you that online child sexual predators join online communities and trade images of child abuse, almost two million horrific images, with like-minded people all around the world. Every online predator is simply one member of a global predator community. Consequently, every Internet child exploitation investigation, no matter where it begins, will yield solid leads about predators in other countries. If we want to make Canada's children as safe as possible online, we need to ensure countries around the world have highly trained cybercops on the electronic beat because it is inevitable that, if we train them, cyber-investigators from Brazil to Botswana to Belarus will tell us more about what predators in Canada are up to.
To date, Kinsa-trained police officers have gone on to identify and rescue 62 children around the world and have played a significant role in the arrest of an offender in Tracyville, New Brunswick, by the name of Michael Gary Gilbert who has since been convicted of abusing 10 children.
Training cybercops from other countries puts more patrol officers in the very same Internet neighbourhoods that Canadian kids play in. This is not foreign policing; it is community policing, and it is remarkably cost-effective. A trained cybercop working here in Canada costs about $150,000 per year in salary and benefits. At first blush, it seems we need to put more cybercops on the beat in Canada, but it is obviously expensive.
On the other hand, Kinsa delivers world-class training to foreign cybercops for about $1,000 per officer, and in both cases the net result is one more officer protecting children everywhere. Hire one or train 150, the math is simple and compelling.
Even though the economics make perfect sense, this issue is not and cannot be just about money. Countries like Canada with world-leading cyber-investigative expertise should support the training of cybercops in less developed countries because it shows global leadership, and most importantly, it is the right thing to do for kids everywhere, including here at home.
Canada has some of the best laws in the world relating to Internet crimes against children. I am regularly contacted by foreign nations who would like to implement our laws. The law in this new legislation is necessary. The new offences of making sexually explicit material available to a child and agreeing or arranging to commit a sexual offence against a child recognize the realities of the day as Canadian offenders conspire with like-minded individuals around the world. I believe the suggested mandatory minimum sentences are appropriate and act as a deterrent to those who might consider harming children.
In closing, if at some point the committee would like me to spend a moment putting the technological aspects of the term "9,000 offenders " regularly referred to today into layman's terms, it would be my pleasure. Thank you.
Senator Fraser: I want to thank everyone for being here. This is an important bill, one whose subject matter is so disturbing that we sometimes have difficulty thinking about it.
Mr. Gillespie, these two new offences being created here — understand me, I think they touch deeply offensive and dangerous conduct — to what extent has the absence of those offences in law hampered the work of police in going after child molesters?
Mr. Gillespie: In my experience, the inability of police to be able to arrest and charge offenders, like-minded individuals who are conspiring to commit crimes against children who are training each other, using the Internet as a social network to devise and share ways of hurting children, has been a great source of problems, not only for children but for law enforcement. This law recognizes something that needs to be dealt with and that people can specifically be held accountable for.
Senator Fraser: If I understand, what it would do is enable the police to get to the molester earlier, possibly before the worst happens?
Mr. Gillespie: Absolutely.
Senator Fraser: We do not have any data on —
Mr. Gillespie: Speaking personally, from experience, when I started in the field was when the Internet sort of exploded in Canada and a lot of things we had to do were self-taught. When I left this field, luckily, by 2006, the police in Canada had come to the forefront globally of investigative techniques, including things that deal specifically with this legislation.
As I remain involved with these same officers, training police from around the world, looking at the examples I have been involved in and speaking to other officers, this is certainly one area where no empirical evidence would be available to date, but I believe is quite important.
Senator Fraser: Mr. Landry, you talked about victims who need help, who are alone and who, in the case of those you represent, are in an even more difficult situation because most of them are orphans. They have no family to support and help them.
What kind of assistance or compensation has been provided in the past to those you represent? Has any help been provided or have governments been completely indifferent?
Mr. Landry: My answer to that very specific question is yes. There was the Programme national de réconciliation avec les orphelins et orphelines de Duplessis, a national reconciliation program for the Duplessis orphans, but it provided compensation directly to each person and not through us. That is the difference. Officially, the program is referred to as "national, " but governments actually call it an anti-poverty program. It is a first step.
Our organization has existed since 2002, and since 2006, we have been fighting for increased funding to help orphans. Providing them with support is akin to applying a balm on their wounds, rectifying the problems they experienced in the past. Today, they need to feel like they matter. They need someone to listen to them, to provide support, guidance and monitoring because they are alone, they are orphans. You are right, they are isolated. They are living in poverty, as most of them are on welfare. Their benefits come from the income security programs. They are living in shelters, hospitals and community organizations.
The category is broad, over 30,000 people, without taking into account other orphans in the Canadian institutional network.
Senator Fraser: I have another question, but I am so worried that the chair will cut me off that I decided to save it for additional questions, later on, or for the second round.
The Chair: We will move to the next questioner. If the question comes back to your mind, I will bring you in then.
Senator Runciman: Thank you all for being here today. Mr. Landry, I was a little confused, maybe it was in the translation, when you were referencing orphans. Are you talking about individuals who have been abused, sexually abused children, or who have been exploited sexually in some way? Is that what you are talking about? When you referenced orphans, I was a little confused with that. Is that who you are here representing?
Mr. Landry: Yes, we represent all orphans, be they victims of sexual abuse, employment exploitation because of a lack of education, or similar injustices. Regarding the more specific area of sexual abuse, we have with us a report published by the Government of Quebec. The report references 341 complaints where the criminal prosecution office, the bureau du Directeur des poursuites criminelles et pénales, decided not to prosecute those responsible, the criminals. That goes back to 1999.
To be more specific, we take care of orphans but in different areas of activity, through programs orphans need. For instance, we also support orphans when they appear before the courts. We accompany and reassure them, and we give them information so they can access legal assistance. We would like to develop programs to raise awareness among members of what we call the legal structure — which includes the police, judges, Crown lawyers and defence counsel. That would help address the specific issue of these orphans who — from the 1930s to the 1960s — lived in the institutional network but are now old and sick. They are poor.
Senator Runciman: Mr. Gillespie, this came up earlier, your experience as a police officer and your current responsibilities. I was looking at this story about the Ontario child porn raid, which was referenced earlier today. I think it ties into something that Senator Frum raised as well. This news story talks about some of the individuals charged: a Montessori school assistant who dealt with special needs students; a photographer of children's pictures; and the husband of a home daycare operator.
I was wondering with respect to your experience, both in policing and currently, how frequent is that effort — we talked about planning of offenders — that planning in terms of working with or near children, that this is a clear intent in terms of future activities?
Mr. Gillespie: Unfortunately, you have hit the nail on the head. In the early days, before the public was as educated as they are getting to be, when we would arrest a teacher, a doctor, a soccer coach or someone with a vocation that put them in constant communication and contact with children, the public typically just could not understand and they found it shocking that such a person in such a vocation would get arrested. We would have to explain to them that the particular reason they got into that vocation was to have access to children. This is from personal experience, from interviewing many of these offenders who would be quite honest about why they do what they do, and the specific reason was to be close to kids.
Senator Runciman: We have had testimony as well related to sentencing and the whole issue of mandatory minimums, which you indicated your support of.
I am wondering what you think, perhaps drawing on your experience as well with respect to sentencing, about what someone would term as being abuse of judicial discretion. Certainly I am not trying to tar every judge with that brush, but I think that the public and this government have clearly recognized the widespread concern related to the inconsistency of sentencing, especially when in many instances it is dealing with serious offences. Can you talk about your experience in that area?
Mr. Gillespie: Certainly. I have found it shocking and I continue to find it shocking that those who would commit especially a contact offence against a young child, thus ruining the majority of children who are abused, would be either sentenced to house arrest or given an insignificant amount of custodial time, which, in effect, when combined with release provisions, would often mean they would do one sixth of the insignificant time that was allotted. I do believe there is a deterrence factor.
From a police perspective, in interviewing offenders, when you are trying to determine whether there are other victims out there, what are the passwords to their computers, and trying to have some leverage over them that will help in the investigative process, we find there is none. We often saw investigations in the United States, where there was a real potential of much more serious time in jail, that offenders would regularly discuss other parts of their network and give up the goods, if you will, on co-accused. We never saw that in Canada. Very regularly, the offenders would just tell us right to our face, "What is the worst I will get; three months' probation? What can you possibly do to me? " and they were right.
Senator Dagenais: My question is for Mr. Landry. I listened to your testimony. I understand that a number of people you represent were sexually abused at a very young age. I also understand that the people you represent were scarred for life. In addition, the sexual predators continued having contact with their victims because no complaints were submitted and there were no means to keep them away.
I would like to hear your comments on the sentences and minimums Bill C-10 would introduce, if it is passed.
You talked about the advanced age of the victims. That also gives us an idea of the abusers' age. Do you feel that a proportionate sentence would be appropriate today for abusers over the age of 80, if they are still alive?
Mr. Landry: I have no expertise in psychology. However, to answer your first question, hundreds of orphans submitted complaints, of which 341 were accepted. However, there has been no follow-up. Why has the judicial process not been set in motion? The report published by the Direction des poursuites de la justice and the Attorney General set out a few reasons. It was assumed that those predators were elderly or sick and that most of them were dead.
Orphans have lodged complaints, but there has been some reluctance to accept, understand and see their suffering. When that process was undertaken, the orphans were not provided with the support they needed in their representations and reports of abuse. In the past, those people lived in what we refer to as a structured environment, under the supervision and responsibility of the authorities. Therefore, they have had no opportunity to express themselves, to report their abusers and explain what happened.
Even today, when the victims seek assistance, so many effects of the abuse are still visible. When the orphans participate in various programs, they express all their suffering. That is difficult for them.
In terms of that, yes, we agree with maximum support for victims. We also learned about a document, provided by Senator Boisvenu's office, regarding a Canadian charter for the rights of victims of crime. We totally agree with and support having a Canadian charter to help victims. And we want to make that loud and clear.
Senator Dagenais: As for my question about sexual predators over the age of 80, would you agree with them receiving the same sentences even if they are of an advanced age?
Mr. Landry: I cannot answer that because I am not an expert. However, it is clear that, as far as legal fairness goes, some measures must be taken. A schedule of sentences has been suggested. We agree with that suggestion, provided there is monitoring.
Is Canada advanced enough in its approach to adaptation and rehabilitation programs for people of a certain age? Such services are needed, but only if monitoring and institutional support are provided. However, I think that letting those criminals off lightly would be unfair to the victims.
Senator Boisvenu: First of all, I want to thank Mr. Landry for his testimony, as well as Mr. Doussot and Mr. Gillespie.
I know that testifying is difficult for victims of crime because it brings back a lot of memories and suffering — and I have felt that in your comments. You should know that speaking on behalf of so many victims with such confidence is a victory. Victims do not report abuse often enough; that much has always been said. One victim out of ten reports abuse. Speaking out and reporting abuse is a victim's first act of empowerment, and you are doing that very well. You set an example for the victims you represent.
Victims' organizations receive very little support. I can tell you that the federal government, especially the Department of Justice, is very aware of that fact. If my office can provide your organization with support, rest assured that it will, just as it supports other organizations.
I read your brief. It is clear that certain elements must go back to the provinces. Victim support comes under provincial jurisdiction, and support for criminals comes under federal jurisdiction. Those two services should perhaps be the responsibility of the federal government. That way, the playing field would be more level. Certain responsibilities belong to provincial governments and others to the federal government.
I want to go back to what Senator Dagenais said. This bill recognizes minimum sentences in cases involving sexually abused children. The bill will also be more severe regarding recidivism. Recidivism among sexual predators can be as high as 90 per cent, over the course of a 17-year career. A report stated that the career of a sexual predator lasts an average of 17 years, that the predator will be arrested four times on average, and that the recidivism rate is over 80 per cent.
Do you feel that imposing exemplary sentences on those people, even for a first offence, is an improvement for victims? Would doing that make victims feel like they were being treated properly by the justice system?
Mr. Landry: Yes, to us it is clear that this is a protection mechanism, a prevention mechanism for the future. It is important to note that those victims are so poor in contrast to the people committing these crimes, who are affluent individuals with resources and some authority at various levels. By that I mean authority in terms of care, direct service, housing, and so on, as well as moral and spiritual authority. Power is being exercised to take advantage of that authority.
As an organization, we are not against religion; we are against those who use religious power to commit these crimes, and we are condemning such behaviour.
Senator Chaput: Thank you, gentlemen, for coming to testify before our committee. This is a subject that is and always will be difficult to talk about.
I have a few very short technical questions. Mr. Landry, you are the president of the Comité des orphelins victimes d'abus. How many victims would you say you represent, approximately?
Mr. Landry: As I pointed out earlier, we are more specifically focused on Quebec, but we are also present across Canada, and we represent over 30,000 people. Many orphans do not come forward; they want to thrive within the community. It is known that orphans have problems. They have experienced difficult situations; they have been falsely diagnosed, and so on. Yet, they want to thrive; they do not want to come forward, but they stay in touch. That is covered in the Law Commission of Canada's report. It concerns children in institutions run by non-aboriginal religious communities. Over 300,000 people are affected.
Senator Chaput: I think you have answered my next question. I wanted to ask you whether there were organizations similar to yours across Canada.
Mr. Landry: There are not any organizations specifically like ours, but there are some organizations that resemble ours in terms of the institutions where people they represent have lived, such as Port Alfred and the Mount Cashel orphanage. We have heard about different organizations that join forces. For instance, in Montreal, the students of the Collège Sainte- Croix came to an agreement, used a class action suit, and an association was created. There is also the Association des victimes de prêtres, the priests' victims association. There are similar small groups out there.
We are not structurally organized, there is no hierarchy, but our needs are so huge that we are more likely to provide direct services than to worry about setting up all kinds of mechanisms. We address immediate needs and are on the front line, and that is important to us.
Senator Chaput: If my understanding is correct, your organization has no access to funding, so I assume that your service is provided mostly by volunteers?
Mr. Landry: Yes, that is part of the program. In addition — and this is fairly innovative — we have a partnership with the Government of Quebec to fight what we refer to as the "lack of work. " We help welfare recipients participate in work reintegration programs through wage subsidies. We are talking about individuals on welfare who work with us in order to develop their knowledge and enter the workforce. In addition to helping others, we help those who work with us. We have no financial resources for infrastructure. We recently submitted a request to the Department of Justice, as part of the victim support programs or awareness-raising for victims' programs, and unfortunately, we were refused. We were really upset about that, but we clearly do not give up easily. We will continue to submit requests, and we are working with various levels of government. We are really disappointed. What is clear is that we believe in our cause.
Senator Chaput: It is very important for you that the offenders be imprisoned, right?
Mr. Landry: Yes, but we also want rehabilitation programs to be provided. We want the offenders to be taken care of by the prison system and have access to rehabilitation programs. The fact that they are older should also be taken into account. I am not an expert on this matter, but it is clear that sentences need to be more severe because we believe that, for some time now, defendants have been getting off lightly. The French term "bonbon " used to describe those sentences basically means lenient.
Senator Chaput: So you want harsher sentences, but also rehabilitation programs for offenders?
Mr. Landry: Yes.
The Chair: We have two senators left in the first round. I would ask you, with both questions and responses, to keep in mind that there is a specific bill that we are here to consider and address and to focus on that. I realize that none of this fits into a neat package and overlaps into a lot of areas, but it is Bill C-10 and all it involves that we are interested to hear your thoughts about.
Senator Lang: I would like to direct a question to Mr. Gillespie, if I could.
First, he volunteered at the outset to explain to us this 9,000 Internet service provider information, how it applied and how we could fully understand it from a layman's point of view. Perhaps you could provide us with that information?
Mr. Gillespie: It would be my pleasure. Inspector Naylor referred to the file-sharing investigations. First, it has nothing to do with websites. File sharing is popular in how we share and trade music. It started to come to light several years ago with the Napster investigation in the United States. People would store music on their own computer and shared music so that, if you wanted this song and I had it, you could download it for free, and I did the same for you.
Today, there are several file-sharing networks and areas of the Internet. If you wanted to become involved, you would simply download free software and agree to leave part of your computer open. If you think about all the houses in Ottawa, if you wanted to share music, in the real world, you would leave your garage door open. Anyone could see the garage was open because it was a public space. If you drove by and saw the garage door open and there was a song there that you wanted, then you could press a button and download it into your computer and vice versa. This is the method that the offenders are using. They are sharing files. They are leaving parts of their computer open on the public Internet, making people aware of exactly which files they have in their computer, which are specific images of child abuse. By using their computer, people can seek out the name of a picture, or a certain description, et cetera, press a button and it will allow them to download, from someone else's computer, a file. That is, their song or an image of a child.
Police have the ability to somewhat monitor this activity. It was an American police officer who invented this almost 10 years ago. He has previously given evidence before a similar committee in the United States. Back in 2007-08, he reported to the American public that up to that point, they had already become aware of about 700,000 American IP addresses that were sharing these images of abuse in the exact same way that our children and grandchildren are downloading their music. That was four or five years ago in the United States. The investigations have continued. The software is being used around the world, and as much as it is a problem in Ontario, it is certainly a problem in the rest of the country and in every other country.
Senator Lang: These numbers are quite staggering. For the viewing public to hear those numbers in the United States, it can only be described as sickening that there would be that many people involved in this.
Mr. Gillespie: These are all public documents. Everything is out there on the Internet.
Senator Lang: Going from a technical point of view and the converse with these individuals who may be just getting involved in it, in some cases it might be a computer being used by someone that some other individual owns and has no idea that this is being done on their computer. Was there any thought of going back and contacting directly those computers and speaking to those computers to let them know that we are knowledgeable about what they are doing and they are being watched, and then to try to use the fear from the point of view of being discovered so that they would stop and desist this type of practice?
Mr. Gillespie: First of all, this is an ongoing police investigation coordinated by the Ontario Provincial Police, so I cannot comment on what they are thinking about.
From a societal point of view, the concern when I hear such large numbers is fairly simple. I obviously believe that a relatively high percentage of people who trade and possess child pornography are also hands-on abusers. Various studies around the world show as little as 10 or 15 per cent, and many American studies show 80 per cent. I believe one out of three people who possess and trade these images is a hands-on abuser. That is my personal opinion after being around this for the last 12 years. When I hear 9,000 or 100,000 or one million, that tells me something.
I know the police are obviously very concerned about this. They are doing an incredible job, led by Superintendant Bilinski, who is a world leader in what he does, as is Inspector Naylor, but this presents a new challenge and speaks to the need for bigger solutions and more societal discussions. As you can see and have learned, obviously there are a lot of different moving parts here. Most people have a hard time understanding a few of them. Again, from my perspective, having traveled the world over the last 10 years and seeing how this affects and is being dealt with in different countries around the world, they are facing exactly the same challenges. Typically, it is a lack of resources, but truthfully, you could never hire enough police officers to get on the Internet to do anything about it.
Senator Lang: We heard testimony earlier today about specifically Toronto. A witness stated that the general rule from the point of view of committing a sexual offence was that you would get conditional sentencing. It was out of the ordinary if you actually did some jail time. Have you found that in your experience as well?
Mr. Gillespie: In Toronto, I will say that, relating to offences of Internet crimes against children such as possession of child pornography, et cetera, it was certainly not unusual for people who were found guilty to receive, at most, a conditional sentence. Often, when they were direct contact crimes with children, it was not unusual to receive a sentence that would be certainly doing provincial time, perhaps three, six or nine months for actual contact offences and hurting children, knowing again that they would be getting out in one sixth on parole. Yes, it seems in the Toronto area, without trying to be too general, I am not sure if the offences and the sentences given would reflect the public disgust with these offences.
Senator Lang: Could I follow up on that? I think public disgust a very good description of what everyone is, to some degree, feeling around this table. With the mandatory minimum sentences, would that not then give some consistency for the purposes of sentencing across the country?
Mr. Gillespie: I would hope so. There is a terrific imbalance, I guess is the simple way to put it, of sentences, and again not only in Canada but also in the United States, et cetera. I believe there should be a standard that people are held accountable to, as judges and triers of fact, through no fault of their own, may not appreciate all of the circumstances or all of the issues in relation to victims, especially in this area, children.
Senator Frum: To go back to what you said earlier, you would sit with perpetrators and they would say, "What are you going to do to me? You are not going to give me any jail time. " Are you satisfied that the mandatory minimums are enough to give you more leverage in trying to get more information from people?
Mr. Gillespie: Weighing all sides of this, I believe the proposed legislation and the mandatory minimums, at this point in time, are fair, because it does not restrict the judges from giving them more time. There just has to be a minimum amount of time. There have been issues with mandatory minimum sentencing almost being maximum mandatory sentences, whereas judges would not want to do this but this is the most they would, so they would mete out. I believe we have some of the best laws and some of the best sentences and possibility of imposing sentences in Canada around the world, and this does not restrict judges from going higher, but it certainly tells them where the bar is set.
Senator Frum: That is a good point. I wanted to go back to Senator Fraser's questions about one of the new offences, which is making available or distributing sexual material to a young person for the purpose of facilitating other offences, for which the minimum penalty is 30 days, which seems really low to me. Could you give us more context for that particular crime? We have understood it as a crime of grooming or a prelude to a much greater crime. I want to know, in your experience, how typical it is that these predators will begin by exposing children to pornography, as a first step.
Mr. Gillespie: I am sorry to say that if there were a pedophile or predator instruction manual on the Internet, this would be the first chapter, and unfortunately there is and unfortunately it is.
It was very unusual, out of 100 cases, if there was more than one that did not involve trying to, let us say, desensitize children by sending them or showing them pictures of adult pornography, along with conversation and a lengthy process of grooming or building up their trust. That would then digress into sending them pictures of child pornography, typically with children with smiles on their faces. They would say, "See, they do not mind this. " There is a whole, long, thought-out, well-rehearsed and very typical process that offenders will use to ultimately try to gain favour and trust and be put in a position where they can abuse kids.
Senator Frum: That is a horrifying answer, and I think it is horrifying that the minimum on this is 30 days, but it is something.
Senator Fraser: On that point, both of these new offences are hybrid offences. You are talking about summary convictions. I confess to being a bit perplexed about why there would be this hybridization of these offences. You understand this world better than I do. Is there a category of grooming that would be so slight that it would be only worth a summary conviction and 30 days? I can imagine many offences that could be summary offences, but not that one. In transmitting material, for example, you might visit some Third World country and send home a postcard that you thought was funny, and somebody here says, "You are transmitting pornography through the mail, " but that was not your intention. Okay, summary conviction. But grooming?
Mr. Gillespie: I think ultimately the hybrid offences leave the discretion in the hands of the prosecuting or Crown attorney, where it should be, because often where it may be a minimum, perhaps they would want something higher than the minimum but not as high as the minimum of an indictable offence. This may facilitate a guilty plea, remove the need for a child to give evidence and all sorts of other extenuating factors, so I think this rightfully allows certain discretionary powers to prosecuting attorneys to decide how they want to move forth. Typically there will be a number of offences rather than only a grooming charge. It will typically be grooming that led up to a sexual assault for which they may receive a heavier sentence.
Senator Fraser: You have not given me an example.
Mr. Gillespie: I cannot think of one. I agree with you. I do not think there is less serious grooming and more serious grooming; I think it is pretty serious.
Senator Fraser: Something that is so unserious that you do it on summary conviction; boom boom, bye bye, you are gone.
Mr. Gillespie: It is usually part of a bigger picture with many moving pieces, and that puts a certain amount of discretion in the prosecuting attorney's hands.
The Chair: I have a question for both groups. I am thinking of what I have heard from each of you today, how it relates to Bill C-10, and comments you made about the specific amendments that Bill C-10 proposes.
Mr. Gillespie, you commented on the length of sentencing and the mandatory minimums and how they relate to that. You have commented on the creation of the new offences that relate to providing sexually explicit material to children. Are there any other specific elements of the bill you would like to comment on? When I was listening to your comments one came to mind. There is a portion of Bill C-10 that relates to the use of the Internet, of which I am sure you are aware. The bill would expand the list of conditions that would apply to prohibitions and recognizance orders; for example, prohibiting someone from contacting a person under the age of 16 or using the Internet or other digital network, which seems to have direct application to what you have been talking about.
Have you a comment on that specific issue or anything else in the sexual offences against children aspect of Bill C-10 that you feel you have not covered today?
Mr. Gillespie: On the last point you made, I suggest that it would be very difficult to enforce legislation to prohibit offenders from using the Internet.
The Chair: At the outset, Mr. Doussot, you referred to the length and certainty of sentences as being an important issue for you. Are there any other specific elements of Bill C-10 that you would care to comment on and leave us advice on to consider?
Mr. Landry: It is clear to us that deterrence mechanisms need to be implemented to stop this type of crime — sexual abuse — from happening again. With deterrence mechanisms, more restrictive and severe measures would be introduced for this type of crime.
Since Bill C-10 was announced by the Minister of Justice and the Solicitor General, we issued a press release saying that we agreed with the part of the bill on sexual predators. It is important to point that out because we have no expertise on other parts of the bill. However, we agree with that specific part.
Mr. Doussot: Other elements could be added to Bill C-10, such as complicity. We know that pedophiles do not act alone. In the case of the Duplessis orphans, there was criminal complicity between the abusers and the religious institution. Those accomplices should receive a minimum sentence, even if they are 80 years old, because they were an accessory to the crimes. That is something we would have liked to mention in our brief.
All the religious institutions did was move the pedophiles and tell them that what they did was wrong, that they would be moved elsewhere and would have fresh meat. Those people are criminals, and we must crack down on them with minimum sentences.
Senator Fraser: Gentlemen, the most prominent example in Canadian history that is similar to your own story is probably that of schools for Aboriginal children. As was the case for you in the beginning, the victims of this crime had a hard time getting people to believe them. Canadians did not want to believe something like that was happening at home, in institutions that were considered to be reputable and fully dedicated to good deeds.
I remember that you had difficulty convincing people you were telling the truth. People ended up believing that the abuse really did take place, and not only in a few isolated cases. It was a frequent and widespread occurrence. Just recently, the House of Commons issued a formal apology on behalf of Canadians regarding the schools for Aboriginal children. That was a very emotional moment for everyone, but especially, of course, for the victims. Seeing their reaction made me understand that the apology had contributed to their healing.
Has no such formal apology been given to the Duplessis orphans?
Mr. Doussot: They endured an insult instead. Rather than providing them with compensation for their suffering, the government insulted the orphans by offering anti-poverty assistance. That is as good as saying it is their own fault they are poor. That is what the Government of Quebec did. In the media, there is a barrage of publicity announcing a national reconciliation. That could not be further from the truth.
In Quebec, the ministère de l'Emploi et de la Solidarité sociale provides a tiny bit of support called "anti-poverty assistance. " But no apology has been offered. That is absolutely insulting.
Today, people who have a case and want to have it reviewed by the Government of Quebec are not allowed to be heard. A paper record is made and if, unfortunately, the review comes to nothing, if the officials of the ministère de l'Emploi et de la Solidarité sociale do not understand the orphan's real situation, there is nothing to be done, it is final. No healing is possible because people are still not being recognized as victims.
Mr. Landry: With your permission, I would like to point out that, since 2002, we have been calling for the religious authorities to issue an apology. It is not a matter of money; it is a matter of dignity and recognition. It is also about creating a healing mechanism.
We are updating you on our various dealings with political, religious and medical authorities. What makes our case so very particular is that, in addition to being victims of sexual and physical abuse, these children were made out to be idiots, imbeciles, so that they could receive federal benefits. We have evidence, certain documents in support of that theory, which is added to what we call the depth of victims' suffering.
Senator Fraser: You talk about the fact that many of those orphanages were classified as institutions for the mentally ill.
Mr. Landry: Exactly. The role was changed. I lived in an institution that changed its role and went from an orphanage or a school to a psychiatric hospital.
Mr. Chair, you have before you someone who was falsely diagnosed, a former vice-president of the Montreal chamber of commerce, speaking to the members of a Senate committee. Mr. Chair, it must be admitted that false medical diagnoses were made.
The Chair: Thank you. For the final question of this panel, we will turn to Senator Runciman.
Senator Runciman: Something Mr. Doussot said was quite profound, and it is that victims are never healed. It is something you live with for the rest of your life, really. I do not know if you want to expand on that, but I think it is quite easily understood. Is there any comment? I suppose that sums it up for you.
Mr. Doussot: They are indeed scarred for life. They resent those who abused them sexually. That is normal. Why do they resent their abusers? Because they never obtained justice. People cannot begin to heal until they are recognized as victims. The Duplessis orphans were never recognized as victims, so even if they are 80 years old — some are still alive — they are still victims. The guilty parties were never recognized as such. They were protected by the church, by 10, 20, 30 lawyers from the best firms. The unfortunate victims do not even have the right to legal assistance. That is a disgrace.
We are calling for minimum sentences for pedophiles and their accomplices. Victims of pedophilia are scarred for life, and that does not change. Healing is impossible unless we recognize that they are victims, that their stories and experiences have hardly been acknowledged by a judge. Recognition of victims is a crucial step.
Mr. Landry: Today, not only the victims, but also their children are traumatized. Some of them are married. Victims' children are coming to us and also submitting complaints. They are still suffering the consequences of what their family — their father, their mother — went through.
The Chair: Mr. Gillespie, I think you wanted to comment as well.
Mr. Gillespie: We are having a technical discussion at times, but this boils down to child abuse that people have simply decided to memorialize electronically. One of the saddest parts about children being abused is that we cannot measure the unlimited potential that was never realized among those abuse victims who have had to lead a tortured existence. We will never know how many statesmen, senators, wonderful mothers or great coaches never existed and could have discovered the cure for cancer or taught someone how to bake a cake. That is the part we really need to understand. That is the basis of all of this.
Senator Runciman: It is important to underline the fact that today we had representatives here from the two largest police services in Canada, plus a representative from an internationally respected organization, Kinsa, supporting the changes proposed in Bill C-10 to deal with this very serious issue. I suppose most of us are left — I am not sure there is a strong enough word; certainly "concerned " is not strong enough — concerned about where we go from here.
Mr. Gillespie, it must be frustrating. We are trying to do our best, and I think Canada is leading in this respect. You said earlier that there will never be enough resources, unless I am misquoting you. What additional advice or direction or suggestions can you offer the committee for the government to consider going forward?
I am thinking mostly of education and getting parents more involved in these kinds of issues as well. I am not sure how we address this. It is such a big issue and it is not only the enforcement side we need to consider.
Mr. Gillespie: First, I would like to make the offer to senators that I and perhaps another member of these organizations come back in a different setting and really give you a crystal-clear view of what is happening. A lot of this is cloudy, and not everyone understands the problem. It is hard to focus or try to identify a series of ways to deal with something without fully understanding the problem.
If we found out there was a rash of new speeders on the 416 and there were 9,000 that we did not know were there yesterday, the first thing we would do is flood the highway with law enforcement to provide deterrence and stop the speeders in order to make people feel safer. Then we would have a discussion amongst all stakeholders to decide that this is a bigger problem than we realized and decide what we will do. Finally, we would have to come back to find out the basis of the problem.
Well, the problem is that some men cannot control themselves and we need to do more research or more studies with regard to treatments that need to occur to help control this and to stop people from abusing kids. If they stop abusing kids, we do not have these problems.
Finding a solution must involve different phases. When the police are saying we cannot deal with what is going on out there, and the ultimate answer is that even if you had a thousand more officers it would not really make a difference, we need to stand back and have a good look. Perhaps we do not understand exactly what the problem is, but we need to have a better understanding. Then, as an educated society, we have discussions and move on. We are at that point, and we have to do that. I am frustrated because I have information about what has been going on for years that I cannot talk about, but I think it is time to start talking.
The Chair: Mr. Landry, did you have any final comment to Senator Runciman's question?
Mr. Landry: I want to add something to the issue raised by Senator Fraser.
I would like to emphasize the fact that the case we are discussing today is much more serious than we think because it is a national phenomenon.
We recently heard about the Netherlands, where 20,000 children were sexually abused. There were also cases in England. In Canada, sexual abuse within Scouts Canada has been looked into.
Today, the victims are experiencing something of an awakening; they are opening up. I want to reiterate that those victims need support and guidance so that they can thrive in Canadian society.
The Chair: Thank you very much for that.
Colleagues, that concludes our time with this panel. I truly want to thank them for what we have heard here. With Senator Runciman's comment and the responses towards the end, it really drives home the point that, in his words, we are trying to do our best. Everyone around this table is trying to do their best in the way we can help this social problem. Obviously you are trying to do your best as well. The passion, the personal experience, and the way Mr. Landry described his own experience, when you hear that it never leaves your memory.
As we go forward, we try to find solutions. As legislators, we use those tools as best we can. We all try to find the perfect answer, but it seems to be elusive. As we go down this road, we continue to find the right path.
We will continue to do it on our end here, but there is no question that with the contribution and the experience you bring to the discussion this is not a theoretical exercise we are doing. We are not applying changes to the Criminal Code in some academic exercise. This is to address the reality that is in our streets and in our society. It is challenging, but the contribution you have made here today is not lost to any of us, and we sincerely thank you.
We will continue our study of Bill C-10 at Part 2 related to sexual offences against children. We are pleased to have with us as part of our fourth panel, from the Canadian Centre for Abuse Awareness, Ms. Ellen Campbell, President, CEO and Founder; and Mr. Mark Allan, Director of Public Safety. From the Association for the Treatment of Sexual Abusers, we have Mr. Lawrence Ellerby, Forensic Psychologist.
We will begin with opening statements. Ms. Campbell, do you have a statement to provide us?
Ellen Campbell, President, CEO and Founder, Canadian Centre for Abuse Awareness: I do. To start, I am a survivor of childhood sexual abuse. That is why I started the agency 19 years ago. Our agency provides support to over 100 agencies, about 200,000 people a year that we support who are victims of abuse.
We have many programs. In addition, we bury abandoned babies, which we feel is the first stage of abuse, and as a result of that we are working on the safe haven law. We are also working on the DEC, which is the Drug Endangered Children program, with the police. I will not go into all our programs but will let you know that we do service a lot of victims.
I also served as a member of the board for the Toronto Bail Program. I sat on the Judicial Appointments Advisory Committee, and I am also an ordained minister. My agency is secular, but I come at this from many different perspectives.
Fourteen years ago you may recall that Martin Kruze, a young man at Maple Leaf Gardens, came forward who had been sexually abused. He was one of over 100 men who had been sexually abused at Maple Leaf Gardens. His perpetrator got two years less a day, and as a result, Martin took his life saying, "Is this all my life is worth? " Since then we have had many more victims come forward as we work with them in their therapy.
We do not take any ongoing government funding, but we received a grant from the justice fund to do round table discussions throughout Ontario on legislative change to protect children. When I make my comments today, it is a result of this report with 60 recommendations. Age of consent was taken word for word from legislation. Here are our recommendations, and it includes everyone from Crown attorneys, rape crisis centres, shelters, police, everyone working front line. I am speaking on behalf of those who submitted comments. You can get this online at our agency.
Their recommendation was that the federal government amend section 742.1 of the Criminal Code to create an exception for the imposition of conditional sentences that includes any offences of violence perpetrated against children and includes any sexual offences that involve children, abuse of children and the offence of possession of child pornography.
I am not sure if you are aware, but in Florida they have something that came into force in 2005 called the Jessica Lunsford Act, where a first-time offender gets a mandatory 25-year sentence and then he has electronic monitoring for life. Other states are bringing in similar legislation.
I am glad I follow Mr. Gillespie and Ms. Kennedy. I do not need to tell you the seriousness of the issue. There are over two million images at any one time of children under the age of two on the Internet.
I spent Family Day going through all your other committee meetings to inform myself, and I know the head of the Canadian Bar Association said there is a lot of faith in our judicial system, but I respectfully disagree. I think people see Canada as being soft on crime, specifically these crimes.
Senator Frum, you are correct when you mentioned in one of your comments that victims do not come forward because they know it will be a very minimum sentence that the perpetrator gets, and it is just too difficult when they go through that difficult situation and they know they will get off. Senator Lang, your comment is correct that advocacy groups are asking for minimum sentencing.
I do agree that in looking over all those recommendations that maybe a safety valve for the mentally ill should be considered. I work in the prisons as a minister. Eighty-five per cent of women in prison have been sexually abused, and I believe the number is higher for men in prison. If we want to empty the prisons, we have to deal with the root cause. I have heard the costs mentioned considerably in this report. The Red Cross estimated in a report by the University of Western Ontario that $15 billion a year is the economic cost on child abuse, and it must be higher now. Perhaps when we are looking at the costs, I know the comment was made that maybe it is not more money but maybe more efficiency in our justice system. I do not know. That is what you learned senators will have to decide.
I appreciate that you are listening to victims and that you are hearing us, but I really feel that we need to get our focus back on the children. That is the number one thing we need to do because for them it is a life sentence. Thank you.
The Chair: Thank you, Ms. Campbell.
Mr. Allan, did you wish to make an opening statement?
Mark Allan, Director of Public Safety, Canadian Centre for Abuse Awareness: I have just a few comments to follow up on what Ms. Campbell has said.
First and foremost, we must be relentless in our pursuit of keeping our kids safe. The life trajectory of an abused or exploited child is bleak. These children are suffering emotional abuse, mental health issues, substance abuse issues. In later life, they themselves often become abusers or, as Ms. Campbell said, there are high incarceration rates for both male and female victims. The outcome is bleak for those kids.
In my former life I was a police officer. I am a retired inspector with the OPP, and two key aspects of my career were as a long-serving detachment commander and in the area of crime prevention for the last six years of my career.
Many crimes can be prevented. Abuse and exploitation of children is a very hard crime to prevent because so much of it happens behind closed doors, much like domestic abuse. At least in domestic violence we have the opportunity to educate adult women as to how they might be able to escape their abusers. When we are talking about children, it is very difficult.
When it is a hard crime to prevent, we have to separate the abusers from their victims or potential victims, and that is where mandatory minimum sentences come in. It would be nice to think that we can rehabilitate or prevent, and in some cases I guess it is possible, but in cases where it is not, we need to separate the offender from their victims or potential victims.
The police are doing their best. I know you heard from some gentlemen this morning, but if we look at the Internet with respect to exploited children and child luring, it is a playground for pedophiles, and it is a relatively unsupervised playground. Police and the government are giving more tools all the time, but it is constantly a case of catch-up for the police to try to stay ahead of this. While great work is being done, with technology changes and what is going on online, we will constantly be playing catch-up.
Ms. Campbell mentioned a couple of programs that are near and dear to our hearts at the Canadian Centre for Abuse Awareness, and that is the drug-endangered children initiative and the safe haven, which deals with discarded babies at the earliest stages of child abuse. We are working to pursue those.
Lawrence Ellerby, Forensic Psychologist, Association for the Treatment of Sexual Abusers: I would like to extend my sincere thanks and appreciation for the opportunity to be here. My affiliation, as it reads, is as the immediate past president for the Association for the Treatment of Sexual Abusers, an international, non-profit organization of some 3,000 members who are mental health, child welfare, criminal justice, victim advocate and prevention specialists interested in understanding sexual assault/abuse and advancing the field of knowledge and effectiveness in the assessment, treatment, case management, risk management, evidence-based policy development and prevention in regard to sexual abuse.
The comments and observations I would like to make today are really based on my own practices as a forensic psychologist for the last 25 years, working in the field, in correctional institutions, mental health facilities and community settings with individuals who have engaged in sexually offending behaviour and working with law enforcement, provincial and federal corrections, mental health and community agencies to enhance the way we are able to integrate people safely back into the community.
In the short time I have for opening statements, I want to highlight five points that I hope will resonate with you in your deliberations, which I am open to expanding during the question period.
First we have to be thinking and talking about who are the people committing sexual crimes. We use terms like "sex offender, " "sexual predator " and "pedophiles, " and they conjure up images and fears, and understandably so in many cases, but we need to know that sexually offending behaviour cuts across every demographic categorization there is. There is no typical sex offender; there is no particular type. I have seen clients of all ages, all races, all religions and all professions. It would probably surprise you, some of the people who have walked through our doors.
I also think it is really important for us to keep in mind that the vast majority of sexual crimes are committed by people known to their victims. We often react thinking crimes committed by strangers are the most frightening, horrifying cases, but these represent the smallest proportion of the kinds of cases we see and that often affect public policy and legislation.
Most victims know their offenders — they are family members, friends, acquaintances, people in positions of trust and authority — and we need to be able to understand the implications and complexity coming from those dynamics.
The second point is that we are evolving in our ability and now have reliable and valid risk assessment tools to help us differentiate who are the people we need to be most concerned about and where the resources best need to be allocated. It is important to look at more strategic orientation towards using risk assessment to help us in figuring out what to do in sentencing, case planning, supervision, treatment and risk management.
The third point is that treatment works. There is ongoing, developing and strengthening research literature that shows differences between comparison groups of untreated sexual offenders and those who have received treatment. We also know that the more treatment is consistent with what we know works in the intervention for this problem, the better the outcomes are.
The fourth thing I want to highlight is that if we are looking at effective public policy to make our communities safer, we need to also recognize that only 10 to 18 per cent of sexual offences are actually reported, which means the vast number go unreported. There are many reasons why individuals do not come forward to report abuse, and I think we have to understand these, look at them and figure out how to enhance disclosure and also opportunities for individuals who are at risk to offend or who are offending to get the interventions to help them stop or prevent them from hurting people.
The final point is that we focus very much in legislation around the world, not just in Canada, around being able to focus on what do we do with the offenders at the point they are detected. I think it is imperative that, to keep our communities safer and to build community wellness, we invest in prevention programs. There is a growing literature that a number of the legislative approaches that have been taken in other countries have little return on the investment, whereas focusing dollars on prevention initiatives can make a significant difference in terms of the prevention of future crime. Thank you.
The Chair: Thank you very much, each of you, for these comments. They are helpful.
Senator Fraser: Thank you all for being here as we contemplate this thorny, complex issue.
Ms. Campbell, you said that we have to focus on the children. I think that everyone here would be in agreement on that, that it is the best interests of the children that this is all about.
I would like to have your reaction. I will read to you from a submission made to the committee by someone who will not be appearing before us but who has made a formal submission. His name is Rupert Ross and he was, for 26 years, a Crown attorney in Ontario. He said:
Because child abuse is such an abhorrent crime, I supported a strong response when I began my career. In pre- trial discussions I insisted on long sentences, with the result that few accused pleaded guilty.
He goes on to talk about what that meant, then the case had to go to trial and, as would so often be the case, would depend essentially on the word of the child. People like this tend not to leave evidence lying around if they can avoid it.
He points out that for many of these children,
Their whole world is now upside down — and everything depends on what they tell the judge. That pressure is often overwhelming; I have watched child victims become totally unable to think, remember or speak on the witness stand, especially during intense cross-examination.
. . . In the absence of a guilty plea, however, Judges require that allegations be proven "beyond a reasonable doubt, " and the hesitant words of a frightened child living in relational chaos are seldom sufficient on their own. In my early years, acquittals were the norm, and children had two questions for me. The first was, "How can the judge say he believed me, but then say he was Not Guilty? " The second question often came as the child fled the courthouse in tears: "Why did you put me through this for nothing? How could you? " I still worry about those children.
Mr. Ross goes on to say:
When Conditional Sentences were introduced, they provided just the answer I needed. I could offer defence counsel my agreement to support the imposition of a Conditional Sentence . . . . The vast majority accepted my offer. I achieved what are, to me, the most essential goals of justice, especially the validation —
Through the guilty plea.
— of the child victim's disclosure of abuse. I no longer had to push them through a system that too frequently pronounced the accused "Not Guilty. "
Mr. Ross believes that the imposition of mandatory minimums at all, but increasingly tough mandatory minimums, will, in fact, result in fewer guilty pleas, more trials, more acquittals and more trauma to the children.
I do not know whether he is right, but I would like you to comment on that, please.
Ms. Campbell: Now there are more child-friendly interviews. For instance, they do not have to go before the judge. For instance, there is the Gatehouse in Toronto, where the children go and it is behind a two-way mirror. The child does not realize he or she is an interview, and the interview is taped. I think the courts are starting to be sensitive to the children.
Again, I come back to there are those situations for sure, but a lot of the people I am talking about are adults who want to go before a judge, want to be heard and are not going to fall apart, if they are believed, but they are going forward as an adult. I am not just speaking about children going forward. There are a lot more court-friendly ways to do that, but I am also talking about adult survivors of childhood sexual abuse.
Does that answer your question?
Senator Fraser: That is your answer, by definition. That is your answer.
Ms. Campbell: Yes.
Senator Fraser: Mr. Ellerby?
Mr. Ellerby: Not to be status-oriented, but "Dr. "
Senator Fraser: I am so sorry.
Mr. Ellerby: I went to school for a lot of years.
I have a great deal of respect for Rupert Ross, his perspectives and his thoughtful approach to criminal justice and restorative justice approaches. One of the things this comes back to is that for all of us, as you said, who are in this business, the children are the most important. For those of us who do offender-oriented work, that is our orientation. Our number one goal is the prevention of further sexual offending, and we try to respect and honour the victims and survivors of sexual abuse in the way we do our work.
The concerns I have and that I would share are similar in two dimensions. The first is that the research we see out of the United States, albeit a different system and a different country, shows us that with the increase in mandatory minimums and sentences, there is more trepidation around the types of charges that are laid, about moving forward with charges, greater use of plea bargains, more often, or not proceeding with charges or proceeding with charges that will not be covered under the mandatory minimum, as a means to try to move through the process. Ultimately, where it lands in terms of a conviction raises some questions.
The other thing is that we know, as I said, from the research around why kids often do not come forward — going back to who these offenders are, that they are most often known family members and friends of the family versus the scary stranger — that there is a lot of conflict and pressure on children with regard to reporting and the impact of reporting. What does it mean if I report and Dad goes to jail, loses his job, and our family does not have an income, my mom loses her husband, or worse yet, I lose my family? It is complicated. Part of it is being mindful of the implications on children and how we proceed in a way that allows children to have a voice in a way that is safe.
The Chair: Mr. Allan, do you wish to comment, in particular on the point Senator Fraser raises regarding conditional sentences and the appropriateness of those?
Mr. Allan: I think we have covered it. There are so many tentacles to this issue that it is difficult to come up with a right answer. First, I agree fully that risk assessment is a valuable tool, but it is not a perfect tool. If it could clearly identify to us who can be helped and who cannot, it would be a wonderful world, because then we could focus more on prevention for those individuals.
The doctor can probably correct me if I am wrong, but I think there are some individuals — and some are self- admitted — who cannot be helped or who do not want to be helped in some cases. When we focus on the child, these are the individuals that we have to focus on separating from victims and potential victims.
Senator Runciman: Ms. Campbell, I did not quite catch the publication you cited, but you mentioned a $15 billion per year economic cost of child abuse. Could you elaborate on that?
Ms. Campbell: The study was done in 2003 by the University of Western Ontario and it is on the Red Cross website. It is quite extensive.
Senator Runciman: As I referenced earlier, some of the criticism of this legislation has been the cost of incarceration and not enough recognition, perhaps, of the costs suffered by victims and society at large with respect to the actions of criminals.
I want to ask the doctor a question. We had a witness earlier from Prince Edward Island — I do not know whether you were here for his testimony — talking about dealing with sex offenders and about the percentage of individuals who have been convicted who are pedophiles. What is your experience with respect to that, in terms of individuals who have been found responsible for sexual abuse of children?
Mr. Ellerby: Again, what I can go back to is the notion that oftentimes we refer to individuals who commit a crime against a child as a pedophile, and what we know is that there are individuals who commit crimes against children for a variety of reasons. Those individuals who would be identified as having a pedophilic orientation are specifically those individuals who have a sexual preference for or a sexual interest in children, where that is either their primary preference — this is their sexual preference — or they may have a preference towards both adults and children.
When we look at the offender population as a whole, I cannot tell you what proportion are pedophiles versus incest offenders or child molesters. I cannot give you those numbers. However, I can tell you that what we see is that the vast majority of individuals who are committing sexual offences against children do not fit into that pedophilic category. They fit into the category of individuals who are committing crimes — they are sexual crimes, largely for emotionally oriented and based needs — in very distorted and destructive ways, versus that that is their sexual preference. That is why I think we must have policies that can differentiate between the pedophilic type of offender and the risk they represent and the treatment and risk management needs that they evidence, versus the other types of individuals who offend against children.
Senator Runciman: How do you definitively determine that? Can someone mask it in an assessment, and they are treated in a different manner than they otherwise would be? A pedophile, I am assuming, is treated chemically.
Mr. Ellerby: Certainly there are different treatment regimens between someone who has a pedophilic interest versus someone who does not. You ask a good question. How do you make that determination? That determination is made in a variety of ways. The first is looking at what their sexual development and sexual history has been, what their offending behaviour pattern looks like, and exploring areas related to sexual interests, sexual fantasies and sexual arousal. There are also testing procedures that allow for evaluating sexual interest, where you have an individual attend a laboratory and you are exploring what their sexual preference profile might look like.
Oftentimes, it seems quite remarkable that individuals will talk to you about what their sexual interests and preferences are. Again, can you definitively, in every single case, make that differentiation? No, you cannot. However, there are a number of things we can do, through our understanding of offences and how offenders present, and through what the offence histories and the specific offence behaviour patterns tell us, which help us to make those evaluations.
Senator Runciman: In a study you conducted in 2002, you concluded that Aboriginal people were less likely than non-Aboriginals to commit sexual offences against children. I wonder if you could speak to that, because it does have some relevance to our consideration of this legislation.
Mr. Ellerby: I think what I need to do is put that into context. That particular paper was looking at whether there were differences between the offence profiles of Aboriginal versus non-Aboriginal offenders, and what that information tells us. In that context, we found that in comparison to the non-Aboriginal offenders, the Aboriginal offenders whom we saw in our treatment program had a higher proportion of offences against adult victims, while the non-Aboriginal offenders had a higher proportion of offences against children.
That is not talking about as a population or group; if we look at Aboriginal offenders who commit sexual offences, what is the proportion of offences against children? However, compared to the non-Aboriginal offenders, that was one of the differences we saw.
Senator Jaffer: I thank you all for being here, especially Ms. Campbell. You are very brave. Thank you for sharing with us your experience.
I have listened to you and to the earlier panel. I have done quite a bit of work in this area, and I struggle with wanting a comprehensive approach to this issue. Just sending people to jail or having tough sentencing is part of the comprehensive — I am not denying that — but it cannot be the only thing. Working in this area, where I found it really difficult is, first, the healing of the person who is abused; and then also an important factor is the treatment — doctor, you spoke about that as well — of the person who is abusing. We must have a comprehensive approach. In all of this, there is also the healing of the family.
Senator Runciman used someone else's words when he said, "You never heal. " He was quoting from someone else. It is true; you never heal. We saw that from you today. That is why we respect your being here.
There are many factors that we could consider, but the one you spoke about that I would like you, Ms. Campbell, to expand upon is specifically the issue of people suffering from mental disabilities. I would like to hear from you as to how we should treat them under this bill. I am looking to bring in an exemption to section 718 of the Criminal Code for people suffering from mental disabilities. Can you help us with that?
Ms. Campbell: Yes. That is why I brought up the point about the safety valve. I have seen that mentioned in many of your committee hearings. I do not believe that people with a mental illness should be sent to jail. That is not where they will heal.
Senator Jaffer: What should we do? What do they need? Obviously, they need healing.
Ms. Campbell: Absolutely; and mental facilities. There probably should be more treatment programs for the mentally ill, let us face it. In Toronto, they were on the streets and now they are in jail. I do not have the magic answer — I wish I did. I definitely feel that mentally ill people should not be incarcerated in prisons. There needs to be some type of healing and something put in place for them. There is very little available now as it is, even for victims of abuse not dealing with mental illness. We are a resource centre, and there is even less available for men. I need to say that the majority of calls I get for help are from men. That is a whole other issue as well.
We need more prevention programs for sure, and we absolutely need more treatment programs. I respect what the doctor is saying. I have always said there is no healing possible for pedophiles, but I am starting to listen, and perhaps there are certain circumstances where there is a degree of healing.
Again, I would rather err on the side of protecting the child.
Senator Jaffer: I was surprised to hear the doctor say that there is healing for pedophiles. Every time I worked on this issue, people said there was not, so things may be changing.
Dr. Ellerby, I wrote down your five assessments and I have been thinking about them. When I was a lawyer and went to prison, many times the person who committed the sexual assault was a child at one time who was a victim of sexual assault themselves. I would like any of you to speak about that. That is a group that has been mentioned, but not as much. We create pedophiles, in a way — maybe I am going too far. If the victim does not heal, then we see them in our prison population. Can all of you expand on that?
Mr. Ellerby: Certainly. In a brief that I prepared for you all, I spoke a bit about that.
I want to preface my comments by saying that what I am about to share is by no means in any way an effort to diminish the seriousness of offending behaviour or the accountability for offending behaviour. When we see people who are engaged in this behaviour, people are not born monsters who are going out and hurting children. People's lives are shaped by the experiences that they have for the very most part. It is part of understanding this context in terms of being able to have the ability to contextualize cases and to make decisions on those cases related to sentencing, or release, or treatment, based on those dynamics. So many of the people that we see, when you look at their lives, come from experiences of neglect and all types and forms of abuse. People often think that when offenders go to court, they will use their abuse histories as a means of presenting a mitigating factor. My experience is that actually that is not what happens. They try to deny and minimize, and they do not want to speak about those things. Many of the people we see are individuals who, at one point in time, were the people who were failed by the many systems we put in place and that we are talking about today that need to be in place for kids. For example, where law enforcement did not intervene because it was a family matter; where child welfare did not intervene or, where they did, placements became even more problematic in some cases; where schools did not know how to deal with acting out behaviours of problematic children, and interventions could not be put in place at an early point in time; and where the answer at some point became going into custody, which only further enhanced the developmental problems, the pathology and reinforced the issues that, I think, continued on that course for engaging in criminal behaviour.
Again, it is coming back and stopping the use of these phrases or being careful about using phrases like "pedophile, " "predator " or "offender. " These are Canadians; these are individuals who have often had traumatic and difficult lives. They are completely responsible for their behaviour. They need to find that accountability. One thing we need to understand is that there are other ways of having people take accountability in their lives that can be meaningful and result in change in behaviour, enhanced wellness, a strengthening in our communities and increased safety for our children. Very often, if we are oriented towards a punitive measure in isolation of those other dynamics, we lose that.
Senator Jaffer: May I ask a short question or on the second round?
The Chair: Yes; very short.
Senator Jaffer: Thank you. We have heard, through these hearings and elsewhere, that there are good short-term healing programs within our country. However, for real change for many people, we need long-term healing programs. I am struggling with what "long-term " means, if you can give me an idea. Obviously, every individual is different. Roughly, what do we need to set up to help people? You have said the cost for this is $15 million, right?
Ms. Campbell: Right.
To add to what the doctor said, I believe, as he said, that a lot of perpetrators are victims themselves, but they still made a choice to perpetrate on a child. There must be consequences to that choice. With all due respect, there still must be consequences.
Senator Jaffer: I am not saying otherwise.
Ms. Campbell: Yes, I know; sorry. I want to be clear. I am a minister. I believe in grace and mercy. I have forgiven my perpetrators.
More to your point, this is complex, and more programs are needed out there. It is individual, but there are a lot of programs right now, especially for trauma, if you go into programs that deal with post-traumatic stress disorder and, lots of times, through addiction, you might get that help. There must be a lot more support for sure.
Mr. Ellerby: Your question is a complicated one because, first, we go back to the importance of understanding the level of risk of a particular offender and the dynamics of the crime that they have committed. For lower-risk offenders where we can understand and probably more easily contain the dynamics relating to their offending behaviour, programs do not necessarily need to be long term. They can be more contained, but they need to be able to approach the intervention in the appropriate way — something that we are moving away from in our country. We need to have therapeutic services in that regard. If we are dealing with the very highest risk offenders, then it is important to have comprehensive, wraparound services that can be extended in nature. That is important.
The other piece is to talk about the goal of the intervention. The goal of the intervention for most of us may be something like we do not want these individuals to reoffend. Obviously, that is an important goal. I just came back from Hinton, Alberta, where I did a program evaluation in an Aboriginal community; it was something extraordinary in that they were dealing with a low-risk population. They were dealing with individuals who had offended within their family. When we talk about "low risk, " that is not in any way to diminish the seriousness or the trauma related to the behaviour; it is about what we know about the repetitiveness of the behaviour after detection.
The research literature tells us that those kinds of individuals do not need a lot of treatment, but this community provided an intense amount of treatment because their goal was not just the intervention for the offender to not reoffend but they were trying to break the cycle of violence in their community. They were trying to stop sexual abuse. They were trying to stop physical abuse. They were trying to manage substance abuse. They were trying to deal with suicide and generations of trauma. These programs provided services to everyone: the offender, the victim, the mother, the siblings, the aunties, the uncles, the grandparents. It was a community intervention, and that community is starting to shift. It is about community wellness.
We have to ask ourselves what the level of risk is and what the goal of the intervention is, and those help to guide answering your question.
The Chair: Colleagues, I would remind you that our scheduled time to continue this very interesting discussion is 35 minutes. I have six senators who wish to speak in first round and others on second round. Please keep that in mind with your questions and responses and be concise as you can be. We want you to get your message out, but as concisely as possible.
Senator Dagenais: I want to thank our guests for coming to meet with us. Ms. Campbell, your testimony has touched me, and I completely agree with you. The life of an abused child is terrible because the effects of the abuse are felt over a whole lifetime; people do not recover from it.
I think that it was Mr. Allan who said that distance must be created between the predators and their victims; their coming into contact must be avoided. In that regard, do the proposed amendments to the legislation — harsher sentences — meet your expectations?
Mr. Allan: I do not think there is any piece of legislation that will ever be perfect for this. Listening to some of the discussion here this afternoon, ideally, if we are going to incarcerate someone for a minimum mandatory period of time, in a perfect world, I would like to see that the treatments we are talking about happen while they are incarcerated. If we simply throw them in for a minimum period of time and hope for the best at the other end of their sentence, we all know the outcome of that. It is a complicated issue around treatment and custody, and I am sure the doctor can comment better on this.
We talked a bit about mental health and how that plays into it. Over the past 20 or so years, and I look to my policing career, there are so many issues around mental health that have become criminal justice issues when they should be health issues. I know there is a push, at least in Ontario, to try to shift it back from the criminal justice system to the health system, where it belongs. There have been a lot of people, and I am not necessarily talking about sexual offences here, but just crime in general, where people suffering from mental health issues have been criminalized for very minor behaviour. Sometimes the criminal justice system is the only way to get them help when an order is issued by a judge for an assessment. It is the start of a process.
The minimum sentences are not a panacea for how to fix the problem. If we can get people on the road to recovery or getting the proper assessments to find out whether they can be helped while they are incarcerated for that period of time, it is time well spent. For those who need to be separated from their victim, it creates that separation. It would be nice to know it is not time wasted.
Senator Chaput: Dr. Ellerby, as I was going through the recommendations in the presentation that you gave us today; there are nine of them, and in most of them I have found either funding for research, knowledge base to continue to ensure evidence-based practices, evidence-based interventions, research. The first one says, and I will read it from your document: "Public policy should be evidence based and the specific policies grounded and tied to research findings. "
Just as a matter of interest, doctor, on a scale of 1 to 100, how do Canada's policies rate with regard to this recommendation? Do you know?
Mr. Ellerby: Giving you a number is a difficult task, but I think what we are learning from other countries is that a lot of the policies we are looking at moving towards are policies that other countries and other jurisdictions are cautioning us about. The empirical research in those countries is showing them as having a limited payoff for what they hoped they would get. We are aware from other jurisdictions about multiple problems around mandatory minimums and how those can be problematic in terms of pursuing charges and convictions and in terms of impacting reporting. We also see that there is very little impact or research that can be tied to these longer sentences actually reducing crime.
I think we have to be talking about what our goals are. If our goal is to reduce crime and to reduce recidivism and to do that through mandatory minimums, through registration or through eliminating different types of structured releases into the community, the evidence from other countries, particularly the United States, is not promising that these are indeed effective. If we have a different agenda and there is a different reason for doing it, then there may be warranted reasons for doing so, but in terms of efforts to reduce recidivism, there is nothing to point us in that direction.
Senator Chaput: Could you say that there are provinces in Canada that are ahead of others with regard to evidence- based policies? Do you know?
Mr. Ellerby: Specific to public policy?
Senator Chaput: Yes, as an example.
Mr. Ellerby: I could not comment on one province versus another. I can certainly talk just about my own province of Manitoba. One of the things we see is that Manitoba Justice and the provincial corrections have taken a strong lead in employing what we have talked about as evidence-based practices. They are faced with an increasing demand to supervise high-risk offenders in the community because many of the highest-risk offenders within the federal corrections system are being detained and released at the point where their sentence has expired, and now they come under the provincial jurisdiction if they are placed on a section 810 peace bond. The Province of Manitoba has assumed responsibility for the supervision and the treatment. They have utilized a number of strategies of best practice.
So far, in looking at their work in managing these cases with a combination of partnership of law enforcement, probation and treatment, we are running at about an 8 per cent recidivism rate compared to a 30-plus per cent recidivism rate based on their efforts and investment in that regard. Ultimately, it costs money to deliver these services, but when you look at the reduction we are anticipating seeing in terms of re-offences, in terms of victims and in terms of the cost of correctional and mental health services and on and on, it is one thing that ultimately pays for itself and then some.
The Chair: Senator Chaput, I am sorry. I really regret having to stop you. Your questions are very good, but we will run short of time for other senators.
Senator Lang: I have to say that I do not think I will ever forget this afternoon. I have been listening all day to the witnesses and the testimony, and it has been quite revealing and quite shocking. I think if any Canadian was viewing this particular venue for any period of time, they would certainly be walking away with a different perspective about our country and our judicial system and what we face with respect to a very real social problem.
I find it hard to believe that there are 2 million pictures of child pornography on the Internet on any given day, 700,000 computers identified in the United States and 9,000 in Ontario as a result of one police investigation. That number does not include Alberta, British Columbia or the Yukon — only Ontario. This shows the extent of the problem we face. This tells me that what we are doing now is not working.
I have a question about the victims who do not report, which I am told is the vast majority of cases. It would seem to me that knowing that their abuser would be sentenced to a minimum sentence of one year would bring some comfort to a young boy or girl who wanted to report their case.
Ms. Campbell: As I said, many men are now coming forward, which is very encouraging. For years, that was not the case.
The victims need to know that there will be some consequences. They need to know that what they will go through will be worth it. I think that many more people will come out. Statistically, one in three girls and one in six boys are sexually abused. Statistically, there are people in this room who are victims, other than me.
I feel strongly that this will give more permission for victims to come forward. It also says that the government cares. Many times people think that victims sue their abusers civilly for the money. That is not the case. It is for an apology or for recognition that what they did was wrong. Currently our country does not seem to be saying that to victims.
Not to centre out the church, although it has been out in the open, more than anything the victims just want the church to say, "We are sorry. " I can say, as a victim and for victims, that that is the most important thing. They must have a voice and be heard and know that their country is listening.
Mr. Ellerby: We need to ask victims what they need. Often when Crown lawyers ask that, the answer is surprising. Very often, as Mr. Allan said, part of what people are asking for is accountability and acknowledgment.
With mandatory minimum sentences, there will unfortunately be lawyers who will advise offenders to not take that accountability, to attempt to deal with this through means other than the accountability process.
Knowing that the person who hurt them will be away for a year may give some victims comfort, but for some victims the abuser is their brother, their father, their uncle or their grandfather, and it will bring them no comfort. For them, that will be an additional stressor and an additional challenge.
Senator Lang: Returning to mandatory minimums, we must reiterate that it is a minimum. In most cases, we are talking a year. I think some witnesses have a tendency to leave that issue hanging when they speak to it and intimate that it is like in the U.S. where the minimum is 25 years. There is a big difference between 25 years and one year.
It seems to me that a father or a neighbour who has abused a young girl who is not yet a teenager should have a consequence of at least a year in jail, if not longer. I do not know how one can justify saying that if the abuser is a family member it may be better if they stayed in the community. I do not know how you would differentiate between a family member and any other abuser. This is sexual abuse.
Ms. Campbell: I work with these victims all the time. When it is the father, that is worse than it being a stranger. Once they have come forward and made their story public, they have already separated from their father. They have already accepted that their family may abandon them and that they are abandoning their father. That is already a done deal. In order to heal, that victim needs to know that their father is not around them, is not in the community. As I said, I think it is even worse when it is a father, and the consequences should be equal. If anything, I look at incest as even worse than abuse by a stranger.
My perpetrator was an elder in the church who lived in our house for two years and abused my sister and me together. I never came forward, and I am sorry for that because he probably abused other people. I did not come forward because I did not think anyone would do anything about it. I was afraid, and I am sorry. I wish I could go back, because he probably abused other people.
You have to consider that if you are not taking these people off the street by giving them a minimum sentence, they will reoffend. I know the doctor can confirm that by the time a pedophile is found out, he has already abused many children. It is all about getting them off the street and protecting the children.
Thank you, Senator Lang, for your comments and your support.
Senator Boisvenu: Ms. Campbell, bravo on your testimony! I agree with you that it is not necessarily a matter of injecting more money into our system; it is a matter of improving effectiveness. Billions of dollars are being invested into rehabilitation and social reintegration programs, but if I look at the reincarceration rate, the costs of reincarceration are 70 per cent. I am not talking about recidivism rates because that is very difficult to calculate. Those whose sentences were handed down by provincial courts are not taken into account, since the federal government only takes into consideration those who received a federal sentence. You can see that even our programs have no impact on people. I am not the one saying that; it comes from people inside the walls, psychologists.
I have a question for Mr. Ellerby. What percentage of pedophiles or sexual predators in provincial and federal prisons are participating in rehabilitation programs in Canada?
Mr. Ellerby: Again, I am not able to tell you the percentage of pedophiles who are in programming in provincial or federal institutions across the country. The goal within federal corrections is to provide programming to the majority of offenders. Treatment and programming, as I understand it, are changing within the Correctional Service of Canada. The most recent report by the Correctional Investigator speaks to some challenges and concerns about the number of inmates who are able to access programs and the fact that not as many are accessing them as we would like, but I cannot tell you the percentages on that.
Senator Boisvenu: Mr. Bensimon, a criminologist who deals with sexual deviants, says that about 5 per cent to 10 per cent of them participate in a rehabilitation program. Is it true that the recidivism rate is calculated based on the inmates participating in a program who commit a crime while the program is ongoing, but that all those not participating in a program are not taken into account? Apparently, only those taking part in a program who reoffend are included in the statistics.
Mr. Ellerby: When we talk about treatment outcome studies, typically we are talking about the treated group, those individuals who have indeed participated in the treatment program, and then we are looking at the rate at which those individuals reoffend. It would be ideal if we could compare to another group of individuals who have not had those interventions.
Senator Boisvenu: So we can confirm that about 80 per cent of sexual predators in the Canadian and provincial prison systems will not undergo any kind of rehabilitation. In provincial prisons, where periods of imprisonment are very short, even if people reoffend, they are not included in any statistics on recidivism.
A psychologist who testified here a few years ago estimates that the recidivism rate — I really want to focus on reoffenders — among sexual predators is about 80 per cent.
In that case, do you not feel that imposing sentences harsher than those we have today would be better, especially when it comes to reoffenders, than releasing them into society? I think that allowing them back into society would be tantamount to giving them a licence to reoffend.
Mr. Ellerby: On the one hand, there are statistics out there about the level of reoffending amongst individuals who have committed sex crimes. That is one category. The research typically does not support that it would be as high as 80 per cent for the population. Typically we see much lower reoffending rates within that population, more oriented towards perhaps a 20 per cent reoffending rate, and then we have the comparison between treatment versus non- treatment.
I would not disagree with you in regard to the notion that if you have someone who has reoffended repeatedly, we need to have strong measures in place to remove them from the community so that the community is safe.
We are talking about the fact that we want to be able to establish, based on our understanding of the risk to the individual, what sentencing should look like, what the correctional plan should look like and what intervention and risk management needs to look like. For a recidivistic offender we would see that individual's higher risk, and it would call for stricter custodial times, a greater level of intensity of intervention while they are in the institution and a greater level of monitoring in the community.
Even for the lower-risk offenders it is not to say that people should not go to prison; it is about saying we should let things like understanding the risk assessment, understanding the risk factors, understanding the case dynamics and understanding the victim's wishes should be part of the formula to understand what is best.
Senator Cowan: Dr. Ellerby, I wanted to go back to read back to you a paragraph in your submission. I was in and out of the hearing and it may be that you actually spoke those words onto the record or perhaps they were in your presentation and not actually on the record. It is something I would hope all of us could accept as being a valid balance, because sometimes we do get trying to divide where there really are no divisions. This is what your brief said:
I also want to highlight, that even though some will draw a line separating those individuals who work primarily with victim issues and those who work with offender issues, it is important to note that such lines should not exist, as those in both camps share the goal of prevention and no more victims, and in the area of public policy area development, many victim and offender organizations are joining forces to advance policy that works. I believe we also need to move away from the dichotomies of getting tough on versus being soft on crime to focusing on getting smart on crime and having policy match what works.
I hope all of us here would share that as an approach to the complex issues we are dealing with. It strikes me that if we focus too much on the incarceration, or if we say we do not believe in incarceration under any circumstances, and we say that everything can always be treated in the community or by monitoring or by treatment, those are false solutions as well. There is a range of approaches that go from incarceration to community care, community monitoring to treatment, and we need to have a blend of all of those so we can deal with the individual characteristics of offenders and of victims.
Would you agree with that?
Mr. Ellerby: Absolutely. I included for you a copy of a document called "A Reasoned Approach, " which specifically looks at issues for public policy development in the United States and is jointly focused on being developed by individuals working in the offender field and individuals working in the victim field.
Again, the notion I want to stress is that we want this to work. At the ground level we want to make sure that we have safer communities, we are making children safer and we are holding offenders accountable, but we are also recognizing the reality of the complexities that are embedded in most of these cases.
When we have a sensational case of abduction and a sexual homicide or a pedophile abusing multiple victims, no one will have any disagreement about strict punitive actions in those cases. However, when we know that the vast majority of offenders are not those people, we need to be thoughtful about how we conduct ourselves with them in a way that is thoughtful about the victim's response, the family's response and how to ultimately manage risk.
Senator Cowan: Perhaps Ms. Campbell will have a comment on that.
Ms. Campbell: I agree too, but our starting point is different. I start with minimum sentencing and treatment. Again I come back to the consequences and the message that you are giving the community and the pedophile. Granted, someone who is seriously acting out on a child is different from someone who is perhaps watching child pornography. That person who is watching child pornography, for instance, the perpetrator in the case of Holly Jones, she walked by and he murdered her and disassembled her. It starts somewhere. If you do not treat it at the root that it is very serious, it will just progress to them acting out.
I believe you need to start right at the root. It is not okay to be watching two-year-old children naked or being tortured online. That is where the line starts for me, but there is also treatment. Again, it sounds like I am a vigilante. I am not. I believe in mercy and grace, but I also believe in consequences and protecting our children.
Mr. Allan: This is an interesting discussion. If we were to take this table, all the people around it, all the different issues and put one thing right in the centre of the table, to me it always has to be the victim. In this case, it is the child and in some cases babies. We must focus on that first and on protecting that child, and whatever else we do, from treatment to types of sentencing, it is all good. It all needs to be discussed. It is complex, and we should never take our eye off the child and preventing victimization.
Senator Cowan: That is what we are trying to do. Everyone would agree with that.
Senator Fraser: Supplementary?
The Chair: Unfortunately no; we have two senators left and we will only have time for one of them. I want to make sure Senator Frum has adequate time for her question.
Senator Frum: Dr. Ellerby, I thought you said incest is a crime with a low reoffending rate. Did you say that?
Mr. Ellerby: When you look at incest as an overall category of offenders, they tend to reoffend at a low rate, yes.
Senator Frum: From that, I understood you to be suggesting heavy penalties are not necessarily necessary because of the low risk of reoffending. Did I understand you correctly?
Mr. Ellerby: No, and thank you for the opportunity to clarify that.
Again, I completely agree with Ms. Campbell's comments. The fact that an incest offence is committed by a relative, a father, means that that trauma can be more significant than from a stranger. It is not about this not being a serious crime. It means that the interventions required to manage risk are not as intensive as the interventions required to manage risk with other types of offender groups who reoffend at a higher rate.
Senator Frum: That focuses on the prevention of future crimes as opposed to the meting out of justice for the victim.
Mr. Ellerby: Absolutely.
Senator Frum: As you know, the mandatory minimum proposed in this legislation is five years for incest. The other witness we had today who is in a similar field to you made the point, as you did, that it is not necessarily in the interests of a victim or the desire of the victim to see that perpetrator put away for that long. I wonder if that matters. Even if the child himself or herself thinks that the perpetrator should not be put away, do we not know better what is in that child's interest?
Mr. Ellerby: I am sensitive of the time, so I will be concise. Ultimately, we want to try to bring about the restoration of balance as best we can when these awful things happen. We need to hear victims' voices, and I think that, yes, there are times when adults need to make decisions for children, but we also do not want to put children in positions where they are going to feel further betrayed or where they will feel further traumatized by the process they are entering into to stand up for themselves, as in protect themselves.
Senator Frum: I am not sure I understood that.
Mr. Ellerby: For some children, again, there is this complex relationship dynamic. The person who hurt you is someone you are supposed to love and is someone who is supposed to love you, care about you and protect you, and they have not, which is a huge betrayal.
If you come forward and you are going to lose your father for five years and your family is going to be disrupted, that is another huge pain for that child to bear. The comment was made that once there is a disclosure, a separation has occurred already. We deal with lots of families where we are doing reconstitution of family, where child victims want to be part of their family in a healthy and safe way, and that is where reparation comes. Reparation does not always come from the consequence; it comes from finding ways to be able to heal, and healing often comes from restoration of relationships or setting boundaries that you are comfortable with in relationships.
Senator Frum: Incest may not be a crime that gets repeated, but before it is discovered I imagine it is a crime that is perpetrated over and over again. Until you catch the perpetrator, they probably have offended multiple times.
Mr. Ellerby: It is an excellent point, yes. Oftentimes you will see it has occurred a number of times or over a period of time, yes.
The Chair: Mr. Allan and Ms. Campbell, are there any comments you might wish to make to Dr. Ellerby's response to Senator Frum's question?
Ms. Campbell: I think I am clear. Restorative justice is wonderful, but I think that healing can be done, certainly, in incarceration; the father could be going through treatment; the family can be going through treatment and then they can come together afterward. It does not mean it has to be done outside of prison.
The Chair: Thank you very much. That concludes the discussion with this panel. Once again, I want to thank each of you. It is an enormous contribution to the work we are doing.
Ms. Campbell, the personal experience that you shared with us certainly makes the point as it cannot be made in any other way. It will be remembered.
Honourable senators, we will continue with our fifth panel of the day in our study of Bill C-10, and the matter before us with this panel, as with the previous panels today, concerns Part 2 dealing with sexual offences against children.
Honourable senators, we are pleased to have with us from the Respect Group Inc., Mr. Sheldon Kennedy, Co- Founder. Welcome back, Mr. Kennedy. Good to see you again. From Public Safety Canada we have Mr. Karl Hanson, Senior Research Officer. Welcome, Mr. Hanson.
Mr. Kennedy, I understand you have an opening statement you wish to make to the committee.
Sheldon Kennedy, Co-Founder, Respect Group Inc.: I do. Good afternoon and thank you for having me back. I am the co-founder of Respect Group Inc. I am here today to speak in support of Bill C-10, the safe streets and communities act, specifically Part 2, which calls to increase or impose mandatory minimum penalties and to increase maximum penalties for sexual offences with respect to children, thereby offering greater protection to Canada's most vulnerable.
When I finally filed a report of sexual assault against my junior coach in 1997 as an adult and professional hockey player, there were people in the media, hockey and the town where it happened who did not believe me. On top of having to battle with the fear and shame that sexual abuse brings, I had to deal with disbelievers. Children who are victimized spend years trying to explain what happened to them and working to restore their emotional well-being. Offenders, in my opinion, serve an inadequate amount of time, in some cases none, paying for these atrocities. Believe it or not, current sentencing laws for someone convicted of sexual assault against a child under age 16 carries no minimum mandatory penalty. This needs to change.
Currently, child sex offenders are also eligible for pardons. My abuser got three and a half years for his crimes and was released after only 18 months. He paid $50, got a rubber-stamp pardon, took off to Mexico with a clean record, a name change and a chance to start offending yet again. Now he is out on bail facing the same charges. Actually, his sentence hearing is tomorrow in Winnipeg.
That is what this government is trying to prevent. Is there a parent in this country who would have an issue with protecting their children from this child predator or others like him? Pardons should be eliminated for all child sex offenders, period.
Child victims of sexual assault often struggle with emotional issues — alcohol, drug dependency and suicide. They have to seek out their own specific forms of rehabilitation. In my case, it has been a 30-year struggle. I lost a lucrative professional hockey career; I have been in countless treatment centres; I lived a reckless lifestyle with significant loss to me, my friends, my family and my marriage. I am still receiving counselling on a regular basis, and it has taken all this time to become a productive member of society.
I believe that we need to toughen sentencing for child sex offences. They just do not seem in line with the damage they leave in their wake, not even close. The proposed legislation, for my perpetrator, would go from a 90-day minimum sentence to one year. The ceiling of a maximum sentence would remain at 10 years. By imposing increased minimum sentences, we are telling these perpetrators that they will go to jail. MMPs and maximums will provide direction to the courts and serve as an equal starting point.
Research shows that the rehabilitation rate for pedophiles is very low, if they could be rehabilitated at all. Why then would we not do everything we can to keep them off the streets for as long as we can? They are a serious threat to our children. They belong in jail for their heinous crimes.
We constantly tell our children and their caregivers to come forward and to tell someone. They need to know that the courage it takes to tell someone and report this will result in consistent convictions that will stick and that justice will be served. To me, the fundamental reason for change to these laws is simple — we cannot let these perpetrators walk freely among our youth organizations, our schools, our neighbourhoods and our workplaces. Children need to feel safe, and parents have to trust that the government is playing a role in protecting them.
Criminals need to be held accountable and be dealt with consistently with clearly defined consequences. In my mind, child protection is paramount. In closing, I want to thank this government for standing up for victims and finally taking action. It is about time someone gets tough on criminals.
The Chair: Thank you, Mr. Kennedy. Mr. Hanson?
Karl Hanson, Senior Research Officer, Public Safety Canada: I am a researcher with Public Safety Canada, and I have spent the best part of 20 years studying sex offenders, looking at recidivism rates, treatment effects and risk assessment.
I am here as a content expert. I am not commenting directly on this law, the wisdom or lack thereof for this particular piece of legislation. I am here to provide background information about basic facts on sex offenders, the recidivism rates, treatment effectiveness, programs that are offered. I am doing this in the form of some brief reports, which are in front of you. My remarks will basically be identification of these reports and what I think is significant about them.
The first one I would like you to look at is one entitled simply "Sex Offender Recidivism. " It is a review using fairly large samples of what proportion of sex offenders are caught again for another sex crime after 5, 10, 15, 20 years in the community, and what you find is that between 10 and 15 per cent are caught for a new sex crime after about 5 years. It goes up to about 20 per cent after 10 years, and it goes up to maybe 25 to 30 per cent if you follow them for the rest of their life.
The other important thing is that sex offenders are not high-risk forever. The longer sex offenders go offence-free in the community, the less likely they are to eventually reoffend; so if someone has been offence-free for 10 or 15 years in the community, their probability of committing a new sex crime becomes very similar to the rate of committing a new sex crime you would find among anyone convicted of a sex offence or anyone from Correctional Service of Canada.
The next one is the recidivism rate of female sex offenders. Sex crimes are mainly committed by males, 95 per cent, but about 5 per cent are committed by females, both in victimization surveys and in official court records. You find that the recidivism rates of female sex offenders are quite low, that relatively few females who are caught reoffend. They are even lower. You see numbers in the 1 per cent, 2 per cent, sometimes 3 per cent range after about five years, which is substantially lower than the 10 or 15 per cent you see with male sex offenders.
The next report is "What Works for Sexual Offenders, " and it is a look at the effectiveness of treatment for sex offenders, and this involves both child molesters and rapists. You find that treatment on average reduces the recidivism rate. It does not reduce it to zero. A typical treatment program would reduce the rate from, say, 15 per cent to about 10 per cent or maybe 8 per cent, so it is a reduction in the recidivism rates, but it is not a reduction to zero.
We also find that the most effective treatments are delivered to the highest-risk offenders. This means not that the highest-risk offenders will eventually become the safest offenders but that you are able to effect the greatest change in the highest-risk offenders. The programs, as Dr. Ellerby said, should be the most intensive, and they are most effective in changing people who have the biggest problems to begin with. There are many sex offenders or some proportion of sex offenders whose initial risk at time of conviction is relatively low, and it is unlikely that intensive interventions will change what is essentially a low-risk group to begin with.
The next document was actually written by Dr. Ellerby, and it is a brief summary of practices in treatment for sex offenders in Canada. This is not a comprehensive survey, but it is a collection of people who responded to the practices survey.
The most important things in here have to do with the average length of treatment, which is somewhere around 180 hours. In practice, this is around four to six months of treatment delivered in an in-patient unit. If you are thinking of trying to get sentences that would line up with plausibly effective treatment, you have to create a window where the offender will have six months in an institution in a treatment program.
If you start with a two-year sentence, for example, one third of it is statutory release, the first third is assessment and moving around, and in the middle you probably have enough time to do a six-month treatment program. If you had a sentence of a year, it would be unlikely that you would be able to run a six-month treatment program, except if you are lucky and efficient in running a program, getting people into treatment and out in a period of time.
There are diverse programs. The programs are organized quite differently in different provinces. With a one-year sentence minimum, you are looking at a provincial sentence. Each province deals with those sentences and treatment resources quite differently, and there are also large urban-rural splits. If you are sentenced in or around Toronto, the resources are quite different than if you were in Sudbury. There is quite a bit of regional variation.
The final document here is a summary of research on sexual offenders who have used the Internet in the commission of their crimes. We look at two things here to the extent that sex offenders who use the Internet look different than other sex offenders, and in some ways they do, largely in the obvious ways. They tend to be better educated and they tend to be somewhat younger, which goes along with Internet use generally. Also, in terms of their criminal history, it tends to be lower than for other types of sex offenders, and their recidivism rates also look relatively lower, but not zero. They are most likely to reoffend with another Internet crime than a non-Internet crime.
That summarizes my basic topics that I would be pleased to talk about further. I am open to questions.
The Chair: Thank you, Mr. Hanson. We will now turn to questions from our committee members, beginning with the deputy chair, Senator Fraser.
Senator Fraser: Gentlemen, thank you both very much for being here. This is very important testimony.
Dr. Hanson, when we are talking about sex offender recidivism, is that all sexual offenders?
Mr. Hanson: That is correct.
Senator Fraser: Do you have data for sexual offences against children?
Mr. Hanson: Yes. A fuller report is available on the Internet and is referenced in the paper called "Sex Offender Recidivism " at the back, where we provide breakouts by various groups: child molesters, incest offenders, offenders with extra-familial victims, extra-familial victims who are boys, extra-familial victims who are girls, et cetera.
The basic pattern is that if you just divide it between child molesters and rapists or adult victims and child victims, they are pretty similar. The average rates are pretty much the same. The group that has the high rates is the extra- familial boy victim child molesters, the group that some hockey coaches and priests belong to. That is the group that has the particularly high rate. It is also the group that is most likely to have more enduring deviant sexual preferences, pedophilia. The related victims, the acquaintance victims, the acquaintance victims of adults are much less likely to have these enduring problems with sexual preferences.
Senator Fraser: With respect to Internet sexual offenders, in my quick reading, while I was listening to you with an ear and a half and devoting half an eye to your paper, the most common Internet offences are related to children. We do not need to look for a breakout there. We can take what you have here as a pretty good guide.
Mr. Hanson: With respect to Internet sex offences, there are two main types. The most common one is some version of child pornography offences, either straight possession, distributing or making available.
There is also a smaller category, though I think more troubling, of people who are luring offenders, who are basically using the Internet to recruit. There are some differences between those groups as well.
Senator Fraser: What are the differences?
Mr. Hanson: With the recruiting types, the basic pattern of the recruiters is that they are adult males who are looking for sexual interactions with basically youth aged 15 to 17 years. The victims in these cases are youth who knowingly go for a sexual encounter with an adult. The adults do not fundamentally misrepresent their age. If they are 35, they may say they are 27, but they are not saying they are 15. The dynamic, therefore, is one of older males essentially tricking, recruiting or grooming teenagers, largely girls, sometimes boys, into sexual encounters, grooming them to be involved this way.
The Internet child pornography group are quite likely to have sexual preferences for children but also to have fairly high levels of self-control. They are less likely than other sexual offenders to have previous criminal histories. They are more likely to be employed and more likely to have attitudes that child molesting is a bad thing. They are more sort of pro- social, in many ways, but they are also more deviant sexually. There are quite different patterns.
The child pornography group look like child molesters in terms of their preferences, whereas the luring look more like sort of date rape or statutory rape types of individuals.
Senator Fraser: What about recidivism as between those two categories?
Mr. Hanson: At this point, the recidivism rates of both those categories look pretty similar. We do see specialization, though. To the extent to which a person is being convicted of a child pornography offence, the most likely recidivism is another child pornography offence. Whereas with the luring, there is some chance of a crossover, although the absolute numbers are still fairly small, they are in the 2 per cent to 3 per cent range.
Senator Runciman: Thank you to the witnesses. We have talked about recidivism, and we have heard testimony, not just with this legislation, but with other bills before this committee, with respect to the significant unreported sexual offences. How do you factor that into reaching conclusions here?
Mr. Hanson: It is always a problem when looking at detected offences versus undetected ones. What we know is that many offences are undetected.
What we do not know is how many offenders are undetected, which is a different question. Essentially, if you commit a lot of offences and the chance of being caught for any one offence is quite small, if you do it many times, you will eventually get caught. Think about speeding; you speed a lot of times and you eventually get caught.
The people who show up in our recidivism statistics are the most persistent offenders. I have done some projections of long-term recidivism rates and how much they underestimate the real rates. The short-term rates are probably substantial underestimates. I am not sure by how much, but I think they are substantial. The long-term rates, the 15- to 20-year rates, are pretty close. They are underestimates for sure, but they are not half. They would be more like 70 or 80 per cent of the real rates.
Senator Runciman: Have you done any research on convicted child sex offenders who have reoffended while on conditional release?
Mr. Hanson: Yes, I have done a couple of quite good studies on that. What do you want to know?
Senator Runciman: Should I be asking the question?
Mr. Hanson: They do reoffend. We did a national survey in about 1997 to 2000. We went across the country collecting about 200 cases of sex offenders on community supervision who reoffended sexually, and then we looked at the detailed case analysis. This research project has improved the community supervision practices across the country.
We found a couple of things. First, in 70 per cent of the cases, the community supervision officer was worried about the case before they reoffended. On the other hand, 30 per cent were not worried; it was out of the blue: "He looked good to me and he reoffended. " For 70 per cent of the cases, there was something like: "I was worried about this guy. He was doing things that bugged me. "
Senator Runciman: You cannot charge for breach?
Mr. Hanson: Sometimes you can, but it is things like the attitude and what they are doing in their treatment group. Sometimes you can charge. Sometimes it is what they are talking about. They are saying things like, "I don't really like my treatment group. That Ellerby guy, he's hopeless. He keeps talking to me about all this sex stuff. " They start talking like that. He is not in breach, but you worry about him. He is not cooperating or working with you any longer. He is sort of going off the edge.
With many of these cases, you are able to identify something. Many of the provinces have picked up a much more structured risk assessment for community supervision, which I think is a benefit in terms of protecting the public and helping the officers to know what to look for.
Senator Runciman: Speaking of benefit, there are some changes in the legislation that deal with conditions upon release. Do you have a view with respect to how beneficial they will be?
Mr. Hanson: As a public civil servant, I cannot directly comment on the merits of it, but I will make the general point that I think conditions matter and are a useful tool for community supervision. They give a message to the offenders about what behaviour we expect, in an explicit way. In the current legislation, there is quite a bit of flexibility in terms of putting conditions in, and I think they are one useful tool in a community supervision and intervention program.
Senator Chaput: I am pleased to find in your report answers to questions I asked earlier. On the first page of your main conclusions, you say the following:
Overall, it is encouraging to note that Canadian programs for sex offenders use practices that are currently considered as the best in the area.
I am glad to see that. The conclusion is based on the 2009 survey. Also, here is another conclusion, on page 5:
Given the overall practices identified in the survey, individuals who have sexually offended, their families, victims, program funders, policy makers, and the public can have increased confidence in services delivered in accordance with evidence-based practice.
That is also positive. That tells me that, in 2009, Canada was on the right track. Things were not perfect, but they were moving in the right direction, according to what you say here.
Then came the Annual Report of the Office of the Correctional Investigator, 2009-2010, which revealed that correctional programs tended to be less effective for Aboriginal inmates. Did you study that issue?
Mr. Hanson: That is a good question. Mr. Ellerby could answer that because he does a lot of work with Aboriginals in his treatment programs. But, overall, in order to make programs effective, therapeutic bonds must be formed with those involved. The difference in the Aboriginal context is not necessarily attributable to different crime-related factors, but rather the therapeutic commitment or bond. So yes, Aboriginals do experience more difficulty when it comes to commitment, but we do have specialized programs as well. However, those are less widespread than general programs.
Senator Chaput: What about mental health?
Mr. Hanson: It is interesting because not many sexual offenders have mental disorders. The percentage is slim, 5 per cent or thereabouts. Personality disorders are more common in sexual offenders. It is usually not schizophrenia or bipolar disorder, although they do exist. There are specialized treatment centres for psychiatric and crime-related issues, but that is not the norm.
Senator Chaput: What about children who were sexually abused?
Mr. Hanson: That was not the purpose of the survey. Generally speaking, that falls under the health network, not corrections.
The Chair: Senator Chaput, I am sorry; I will have to stop you on that point. Hopefully there will be time on the second round; and if you wish, I will include you.
Senator Boisvenu: Mr. Hanson, I am still astounded by the difference in the recidivism rates according to the statistics we are seeing. Are the people in those sample groups part of Canada's correctional system?
Mr. Hanson: Yes, there were people under the jurisdiction of the Correctional Service of Canada, but a number of those statistics also come from other countries.
Senator Boisvenu: I understand. I also understand that those who agree to be monitored do so voluntarily?
Mr. Hanson: No, it is indicated in their criminal record.
Senator Boisvenu: I want to tell you about a case. A repeat offender in Quebec who had committed four sexual assaults and served a sentence in a provincial prison is then sent to a federal prison for the first time. He is monitored for 20 years and does not reoffend. The federal government is telling me that someone who committed four sexual crimes and who served their sentence in a federal prison is not a repeat offender. He had to have received a sentence of more than two years, so he had to already be incarcerated in a federal prison. He comes to you as a repeat offender, but he is not part of the statistics. You will monitor him for 20 years and if he does not commit a crime during those 20 years, he is not a repeat offender.
Now, I am looking at Mr. Langevin's questionnaires, and he is telling us that the recidivism rate is not 40 per cent, but more in the neighbourhood of 80 per cent. His statistics include all those who have received a sentence, in other words, those who received less than two years as well as those who received more than two years.
Mr. Hanson: Did you read my statements in response to that report?
Senator Boisvenu: That is not what I am saying. Does your chosen clientele fall exclusively under the jurisdiction of the federal prison system?
Mr. Hanson: No, not at all. The repeat offence is part of the RCMP's records. It is not related to the statistics.
Senator Boisvenu: That is not my question. These people are monitored over a period of 20 years. Did they receive a sentence under the federal system?
Mr. Hanson: Not initially.
Senator Boisvenu: Who are the other clients?
Mr. Hanson: At the provincial level, the Ontario penitentiary, the correctional site in British Columbia.
Senator Boisvenu: How do you recruit them?
Mr. Hanson: Studies are done, and the provincial intake centre carries out an initial assessment. There is also follow- up. The Philippe Pinel Institute has a database that we can access for analysis purposes.
Senator Boisvenu: I am asking because the Canadian prison system does not have any data on the number of criminals in provincial prisons.
Mr. Hanson: They have considerable data, but generally speaking —
Senator Boisvenu: There is no data.
Mr. Hanson: There is no data because the Correctional Service of Canada does not have the figures as they relate to recidivism at the provincial level. That is not in the databases, but the figures in this report come from the RCMP.
Senator Boisvenu: Which is under federal jurisdiction, not provincial.
Mr. Hanson: No, I also have all the provincial offences, regardless of whether they originate at the provincial or federal level.
Senator Boisvenu: I do not want to contradict you, but I do not believe so.
Mr. Hanson: Very well. That is a question that should be put to the RCMP.
Senator Angus: I have a couple of questions just so I understand this complex area. You have distinguished directly between what you characterize as rape cases of abuse and child molestation. Can you explain to me what falls into the two categories?
Mr. Hanson: Yes; it is not a 100 per cent distinction. When I talk about rape, I am talking about usually adult men who are sexual assaulting largely adult women against their will. It would be a woman who is typically capable of consenting but does not.
When talking about child molesting, you are talking about, again, typically adult males. The victims in this case are younger to the point where we make the presumption that they are not capable of consenting. Even if they say yes or no, it is hard to get a 12-year-old to give informed consent for this type of activity. In child molesting, in most cases the activity does not have overt force. It might, but it is less likely. It more likely has incentives, relationship and grooming. It is a different pattern. The victims are typically girls between the ages of about 10 and 14, and boys slightly older, say 12 to 15. Those are the big groups that we are talking about. There would also be a certain group who are a little older under relationships of trust — that is, coaches and schoolteachers.
Senator Angus: Both of you support the legislation, as I understand it.
Mr. Hanson: I am neutral because I am a civil servant.
Senator Angus: Right, but that is inherent in what you have been telling us, however. What I am drawing from some of your testimony is that these sentences are fine, as long as they are accompanied by treatment. It is treatment that I am interested in.
Mr. Kennedy, I would like to ask you just a couple of questions because your case has been so highly publicized in the media, and so on, especially the perpetrator. As you say, he has been in and out, down in Mexico and received all this cushy treatment, and now he is back in the justice system and is being sentenced tomorrow. Did he receive treatment, to your knowledge, during his period in prison? Would it make a difference?
Mr. Kennedy: I think there is a difference between being offered treatment and actually doing it. A lot of offenders and a lot of criminals are offered all kinds of programs, but they do not have to do it. I know Graham did not do it.
Senator Angus: Even when they are in the jails?
Mr. Kennedy: Yes, even when they are in the jails. We are all about change. We are looking at the individuals here and the minimum sentences. Maybe they are in prison for a year. They will get out, so we all hope that they can change. We want to do everything in our power to make sure these people change, but change takes time. If we look at any drug addiction treatment centres, we work with a lot of adolescents who are abuse victims and end up at drug treatment centres. A lot of times, these kids are in there for a year, receiving intensive treatment all day long.
Senator Angus: I want to understand what this treatment is. We have Dr. Hanson's interesting reports here. We have not digested them all, but I am getting the sense, in going over them, that the treatment involves testosterone-lowering medication, and so on. Is that right? Are these offences libido related?
Mr. Hanson: If you look at what is involved in the treatment programs, the bulk of it is sitting around and talking about things. There is the use of anti-androgen or testosterone-lowering medication for certain cases. There are two classes of them. One is the drug that people use for prostate cancer, which is used for lowering testosterone levels. The most common ones are the SSRIs, which are selective serotonin re-uptake inhibitors, which are antidepressants primarily, that have a sex drive reducing secondary effect. Those are commonly used as well.
A comprehensive treatment program would include counselling and, in selective cases, anti-androgen or sex drive reducing medications as well.
Senator Angus: Does our system or does any of this treatment include some kind of clinical castration? I have heard and it has been suggested to me that for these recidivists and for these repeating offenders of this ilk that you describe, that is the only way to treat them. This sounds like a broad brush, but it has been suggested to me by a former attorney general familiar with the field that that is the way to treat them, namely, some clinical form of castration. Is this accurate or am I mad?
Mr. Hanson: I do not think that is accurate.
Senator Angus: Is it possible in our system, or can we do that?
Mr. Hanson: We have cases of people who present requesting surgical castration. Some of those cases are accepted, and that is what happens.
The issue deals with the reversibility of the effects. Testosterone is produced in various parts of the body, the testes being the biggest producer but not the only producer. There are famous cases of people who have had their testicles removed and who then get hormone replacements, essentially, and reoffend. You can also reverse the effects using anabolic steroids that are available at many of the gyms in town.
If an offender is motivated to subvert the castration, there are lots of opportunities to do so. The cases that are accepted are those where people who have strong sex drive preoccupations want this reduced and for whom there is a chance that they will continue to want to have this reduced for the foreseeable future.
Senator Angus: Thank you.
Senator Dagenais: Thank you for being with us today. I was very interested in what you had to say, and I appreciate how important it is to protect our children from predators.
Bill C-10 is a step in the right direction. I would like to hear your thoughts on abusers' potential reintegration into society. Obviously, we cannot keep them locked up forever. What should we do to keep them far away from children, off the streets? We do need to keep them off the streets after all. I would like to hear your thoughts on that specifically.
Mr. Kennedy: I think we need to have a consequence, absolutely, and we need to keep them off the street. I was listening before to the comments that maybe it is a parent. We need time for that rehabilitation, if that is what is going to happen, to take place.
Any research around these issues is not great. We are dealing with sex offenders. They are master manipulators. We talk about the castration stuff. Well, there are many other ways for these individuals to reoffend.
What I want to really focus on is that we need to empower society on sex offenders and the way they operate. That is our biggest defence. We miss the damage that it has. We have talked about the criminal. We need to talk about the victims and the damage that this has on our young people and the downstream effects it has on our society and into our jail systems. Many of our abused become criminals. I have spoken in many maximum prisons across this country, and many of the individuals had been abused themselves. Somehow, we need to make a consequence and have a consequence for individuals who say, "If I make the choice to offend against a child, then this is what will happen. " Right now, there is no consequence.
Senator Lang: One aspect of this we have to take into account, and it is coming through loud and clear, is that these offences, in most part, are premeditated. These are, as Mr. Kennedy has pointed out, master manipulators, and it is thought out, and the offence takes place not once, not twice, not three times but a multitude of times as they go through life — with that one individual, if not more.
To you, Mr. Kennedy, and our previous witness, Ms. Campbell, I really have to thank you for your courage for coming forward, as you have, over the last number of years to bring this forward and bring it into the public forum to the point where we are having this discussion, which I find quite shocking and distasteful, but the reality is that it is an issue that must be dealt with.
I would like to ask you a question. Knowing where you have been, where you are and looking ahead here in Canada, with the legislation that is being brought forward, looking back to what happened to you, if that legislation had been in place, and the publicity that has come forward over the last number of years on this issue and younger people are more informed on these matters, do you think a young Sheldon Kennedy today would be able to deal with this issue a lot sooner than what you have had to do?
Mr. Kennedy: Thank you for the kind words.
I do not think that sex offences are happening more in our society as we open up the paper every day and see it on the front page. I do believe that our young people and older people are feeling safer to come forward.
When I look at my situation in the town of Swift Current, 20,000 people, a hockey coach operating in there, he was abusing kids before he ever got to me, and the institution knew about it. There were a lot of people that knew what Graham James was doing within that town, but they did not have the confidence to act on their gut. They had a gut feeling that something was wrong. I think the education and the mass education prevention piece is huge, and I think that Graham James operated for such a long time because no one knew what to do or would do anything.
We have come a long way. I think this bill will bring the justice system up to speed to kind of where we have come as a society as to the understanding of these issues. When I go back to no consequence, I look at what we were dealing with and probably will deal with tomorrow, which is a conditional sentence. Graham James will walk again. That is not right. I look at the damage that it has on our victims and society. A lot of times we are focused on the criminal. What about the victims? We are trying to do research on the victims or the criminals. Probably 90 per cent of cases are not even reported. I get phone calls every day, "This happened to me. That happened to me, " and you look at where they end up, and that is the sad part.
Something like this being in place will deter somebody possibly from making that choice. More importantly, it will give the victim the confidence to come forward, knowing that something will happen. Many times they do not come forward because they know nothing will happen, so they say, "Why bother? " I think that is the more important piece here. Yes, change has to happen with the criminal and the offender, but, more importantly, I think it will give our victims the confidence to move more cases and to lay charges or file complaints.
Senator Lang: In your opening remarks, Mr. Kennedy, you stated, and I believe I heard correctly, that the rehabilitation for pedophiles has a very low success rate. Can you tell me what you are basing that statement on?
Mr. Kennedy: Yes. I got that statement through research that we have done at Respect Group. I can provide you with that. All the people and the professionals that I have ever talked to in the field talk about pedophilia having a very low, if any, rehabilitation rate. That is where I got that.
The Chair: If you could provide that to us, it would be much appreciated.
Mr. Kennedy: We will.
Senator Lang: I would like to move to Mr. Hanson, if I could, for just one question here. In your research paper on sex offender recidivism — and I would just as soon use the word "repeat " because I think that is the word that the general public would understand — you say in the policy implications that the level of sexual recidivism in sex offenders is lower than is commonly believed. You make this statement, and I read the number of people that have reoffended and I go through this paragraph and I see a substantial number. What were you expecting before you said that it was lower than what you thought it would be?
Mr. Hanson: A number of studies have been done where we take groups of people like yourself, and I have done it with police officers and the general public, and before I present these results, for example, I will put up the blank tables and ask them to fill them in. Typically, in that case, you will find, for example, when I have a category of, say, a repeat high-risk sex offender, and I ask what they think is their observed rate, and I am not talking about the hidden problems but the observed sexual recidivism rate after five years, typically I get numbers in the range of 60 per cent, 70 per cent or 80 per cent, whereas the observed numbers are more like 30 per cent. It is a comparison between the expectations in the general public, and there are a number of surveys asking about what the general public's expectations are, and the actual numbers.
Senator Lang: Mr. Chair, I have a bit of a problem with that because that type of an approach diminishes the fact that it is at 14 per cent after five years. For every 100 individuals, there are 14 repeat offenders. That is 14 young people out there, if not more.
The Chair: Is that a question?
Senator Lang: Why would you present it that way? It diminishes the importance of the report to me. I thought 14 per cent was high.
The Chair: The question is, why did you present it that way?
Mr. Hanson: I presented it that way because my experience with groups like this and the public is that their expectation was a lot higher than 14 per cent. I am not saying that 14 per cent is not higher than we want. One per cent is higher than we want. I am not diminishing the seriousness of it, but I think we should base our policy on evidence. If we ask people prior to being presented with evidence what those numbers are, they will often come up with numbers that are much bigger than 14 per cent. That is why I presented it in that way. It was surprising to me.
Senator Lang: You make it sound like we made a good deal if we look at these numbers.
The Chair: Mr. Kennedy, from your comments it is obvious that you feel that sentences for sexual offences against children are too lenient. What guides us in determining whether they are too lenient?
As I suspect you are well aware, the Criminal Code sets out the fundamental principle of sentencing. Section 718.1 reads:
A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
That is what guides sentencing. What do those terms mean to you?
Mr. Kennedy: It means that we have a lack of understanding of the damage the crime does to the victim. Most of these offenders do not have a criminal past and are of high standing within organizations, be they a hockey coach, a priest or a teacher, so there is a bit of a responsibility there. To me that means that there is a lack of understanding of the severity of the crime.
The Chair: That deals with the gravity of the offence, but is the responsibility or accountability of the offender significant to you?
Mr. Kennedy: Under the current law we must consider the sensitivity and the responsibility of the offender. I have heard that this law is all about the offender and that there is nothing in it about the victim, and that is the biggest change that needs to be made. We need to start focusing on the victims.
We do need to provide treatment to help people change. I am a firm believer in change; I have had to do that myself. However, how many times do we talk about offenders and leave out the victims? Most often the victims are children who do not have a voice and are easy to walk over. That absolutely needs to change.
The Chair: Thank you for that.
Senator Chaput: I want to come back to Public Safety Canada's 2010 report, based on the 2009 survey data. I want to repeat that, according to that report, Canada was heading in the right direction, because through Canada's existing programs and practices, and I quote:
. . . reductions in sexual victimization can occur so that we can all contribute to making our society safer.
Now we have Bill C-10, which seeks to make the public even safer and provide better protection to victims and children.
What repercussions could Bill C-10 have on public safety and victim protection? Is it possible to quantify its effects and consequences? Public safety and victim protection are the objectives.
Mr. Hanson: Unfortunately, I do not have an answer for you. There are no figures out there, as far as I know, to measure how effective Bill C-10 will be with respect to public safety.
Senator Chaput: In a few years' time, is there any way you would be able to produce a report with quantifiable data on the repercussions of the bill currently before us?
Mr. Hanson: In the future.
Senator Runciman: Mr. Hanson, I was intrigued when you said that most child sex offenders are not mentally ill but rather have a personality disorder. Most people considering the horrors of so many of these crimes would think that the individuals perpetrating these offences have a screw loose, to be honest.
Where does that analysis come from?
Mr. Hanson: By "major mental disorder " I mean a series of disorders that have to do with lack of contact with reality. These are disorders that make people unable to perceive what is there and cause them to hear things that are not there and to think things that just cannot be true.
Those types of disorders are serious and debilitating, but they are not overly represented among sex offender populations. Yes, these individuals have pathology. If you want to diagnosis it, you can often give it various labels, but they are not problems that have to do with lack of contact with reality. They know what they are doing, they know what they are doing is wrong, but they choose to do it and are convicted in criminal courts as opposed to being found not criminally responsible by reason of insanity.
Senator Runciman: One of the conclusions of the Internet sexual offenders research summary paper is that the risk of contact sexual offending among online sex offenders is low. You do indicate that the usual risk assessment tools are not necessarily helpful.
A previous witness, Ms. Campbell, cited an example that questions the conclusion you have reached here, and that is the Holly Jones murder in Toronto with which some of us are very familiar. That individual had no record of offending but was online practising these habits. It apparently finally drove him to steal young Holly off the street and murder her.
How do you rationalize that kind of incident with the conclusion you have reached here?
Mr. Hanson: The conclusions in this report are international comparisons largely based on OPP data out of the threat assessment group in Orillia. They kept track for a number of years of people who had been convicted of these crimes and were existing in the sex offender registry to see who came back and what for.
Senator Runciman: Mr. Kennedy, I believe that you recently testified in Washington before a congressional committee. I think that much of this is driven by the Penn State situation, which in some respects is analogous to what occurred with you, people knowing but not doing or saying anything about it.
Based on your visit to the United States, are things being considered in that jurisdiction that perhaps are not being considered in Canada today and should be in the future?
Mr. Kennedy: The committee was looking for types of preventative solutions to empower bystanders. Institutions, be it Scouts, churches or sports organizations, have as much responsibility to protect youth as the perpetrator had to not make bad choices.
We carried the message down there. They wanted to know where we are here. We gave them a clear message. It is a good measuring stick of where we have come in this country on these issues. We can congratulate ourselves for continuing to be the leaders in looking at these issues, as we are today, because everyone is pulling on the rope.
I carried a message to them of hard work and change that has happened, and it is all for the better. If we look at most of our organizations, we are all moving in the right direction. I believe that this bill and the penalties around it need to get caught up to where we are on the prevention side of the issue.
Senator Runciman: Essentially Canada is leading the way. Is that your conclusion?
Mr. Kennedy: I would have to say absolutely.
Senator Cowan: Welcome and thank you for your contributions to our discussions.
I wanted to respond by way of an assurance. Mr. Kennedy, in your understandable frustration over many years over your own experience, and the experience you live every day in dealing with other people who have gone through the same kind of thing that you did, the focus always seems to be on the perpetrator and not on the victim, and we need to focus more on the victim.
I suggest to you that we are all trying to do that, but if we focus entirely on the incarceration point we have to recognize that incarceration ends at some point. You mentioned Graham James. He got out of jail and bad stuff happened. When we are looking at treatment programs and ways of identifying perpetrators before they actually commit crime, we really are trying to help victims and not only the actual victims but trying to prevent damage to future victims.
I ask you to accept the assurance that all of us are struggling with this. If we sometimes appear to be talking more about the perpetrators and the criminals than we are about the victims, it is only in an attempt to provide better prevention before a crime occurs and prevent a repetition of crimes for others in the future.
Mr. Kennedy: I accept that, and I have said this in hearings before. I am all about change, but I do know one thing: Change takes time and change comes from a consequence. Sometimes we need a consequence to change. If we do not have a consequence, why would we want to change?
I am all about that, and I am in total agreement with recognition and understanding that these individuals will get out and they will be in our society. How do we best equip them so they will not reoffend? How do we best protect our organizations and our organizations that serve youth to recognize these individuals if they are walking freely amongst them? This is important.
One of the things I want to get across, and which I think is a huge point, is the damage that this does downstream within our society to our individuals and our kids, and we see lots of kids killing themselves. I am not sure why, but a lot of times, through Facebook and social media, we can link to those suicides.
Senator Angus: To follow up, Mr. Kennedy, in your questioning with Senator Lang, without wanting in any way to cast any wrong things vis-à-vis tomorrow's court proceeding, you did evince the view that Mr. James would walk again. I think it is directly relevant to what we are doing here. Is it because you feel the present law is too weak and there is not a mandatory sentence for the judge to give him tomorrow, or is there another reason for saying that?
Mr. Kennedy: I am not a lawyer. We are hearing that that is what will happen. I think there is a lot of play here, and absolutely the laws need to change around individuals such as Graham James and others.
Again, I think a lot of times the crimes that Graham James has done are written off. I can assure you it is not just me and the five others he has offended. There are many more who have not come forward, and there are lots of Graham James types out there. It just happens that this is the high-profile case. We will see tomorrow. If Graham James walks tomorrow, we will see a public outcry that calls for tougher and stronger sentencing.
Senator Angus: He may not walk. There are penalties on the books now that he could be given, are there not? I believe he has pleaded guilty for those alleged offences.
Mr. Kennedy: We will have to see tomorrow I guess.
Senator Dagenais: My question is for you, Mr. Kennedy. It was very brave of you to come here today to speak about your experience publicly. I commend you. Unfortunately, there are many who will never be able to do the same, as we know. As you mentioned earlier, that is a shame because keeping quiet allows perpetrators to continue preying on victims.
Beyond tougher laws and sentences, I want to know what you think we can do, as a society, to encourage victims to break their silence. What more can we do to get victims to speak up? As you said, there are many more who say nothing.
Mr. Kennedy: When we look at many of the victims, a lot of times their trust has been shattered. They need to be able to trust the justice system. They need to trust that if they come forward something will be done.
The thing that is lacking the most around these issues within our society is education. If we walk down the street in Toronto, Ottawa or Calgary or any little town and ask individuals whether they can give the definition of abuse, bullying and harassment and the signs to watch out for pedophiles, what are the odds we would get the right answer? They would not be very good.
We need to educate the masses. We need to empower the bystanders with a consequence. We have to know that if we are coming forward, as tough as it is for a kid to come forward, and it is not easy, they need to know they will be heard. They need to know it is not their fault. That is one of the most important reasons that these individuals spend some time in jail. If a year is a minimum sentence that is a good amount of time to think about it, but it really differentiates. Those kids need to know that it is not their fault, and it needs to be clear.
The Chair: Senators, that concludes our time with this panel and, Mr. Hanson, I want to thank you. It was an interesting contrast that each of you brought to us today with your analytical approach and studies. All of that data is extremely important to us.
Mr. Kennedy, you bring another element; it is the personal experience and, as others have said, you are brave and bold to be able to do that publicly. We know you want a public good to come from what you have had to endure. We appreciate it, and we have listened carefully.
Mr. Kennedy: Thank you.
The Chair: Our next witness will be Minister Kenney.
Colleagues, we will continue with our study of Bill C-10, the safe streets and communities act. The matter before us with this panel concerns Part 5 of Bill C-10, and that, of course, relates to the vulnerable foreign workers. We did have panels appear yesterday on this subject, but just to refresh your memories, I will quickly give you an overview of this particular part.
Part 5 of Bill C-10 proposes to amend the Immigration and Refugee Protection Act to provide that the objectives of the act will be to protect public safety and to maintain the security of Canadian society. Additional proposed amendments would preclude situations in which foreign nationals might be exploited or become victims of human trafficking in this country. This amendment would provide immigration officers with the discretion to refuse to authorize foreign nationals to work in Canada if, in their opinion, the foreign national is at risk of being a victim of exploitation or abuse.
As I said, yesterday we did have two panels of witnesses. We are extremely pleased; I know with his schedule it was not easy to be here today, but we very much appreciate having the Honourable Jason Kenney, P.C., M.P., Minister of Citizenship, Immigration and Multiculturalism, with us. Welcome, minister.
Joining the minister, from Citizenship and Immigration Canada, we have Mr. David Manicom, Director General, Immigration Branch; Mr. Bradley Pascoe, Senior Policy Advisor, Temporary Resident Policy and Program; and Ms. Nisrin Nasrallah, Counsel. Welcome to all. We are very pleased to have you.
Minister, I know you have an hour of time with us, and we want to take full advantage of it. If you have an opening statement, we would be delighted to hear it.
Hon. Jason Kenney, P.C., M.P., Minister of Citizenship, Immigration and Multiculturalism: Thank you. Mr. Chair and honourable senators. I just got in from a flight from Rome this morning, I am heading out to Vancouver in a couple of hours, and I have caught a cold, so please bear with me if I am not entirely coherent. My officials, I know, will be in my stead.
Thank you for the invitation to speak to you today about the sections under Bill C-10 that pertain to my ministry.
Canada's immigration system is renowned for its openness and generosity. But openness and generosity do not mean a free-for-all where anything goes.
Canadians want an immigration system that treats people fairly and equally. What they do not want is a system that can be used to exploit and victimize vulnerable people. The current system does not give our visa officers the tools they need to prevent the exploitation of foreign nationals destined for Canada. This is wrong and it must be fixed.
Currently, the Minister of Citizenship and Immigration has discretionary authority, under the Immigration and Refugee Protection Act, to allow an individual who would otherwise be inadmissible to enter Canada. Foreign criminals and, for example, people with serious medical conditions who under the law are inadmissible, I can use authority to permit to enter Canada. However, there is no authority for the minister to deny work permits to those who would otherwise be entitled if we believe there are grounds that they may face exploitation, for example.
What that means is that, under the current legislation, we cannot deny a permit to an applicant who meets all other requirements under IRPA — even if we are convinced that there is a strong possibility that, upon entry into Canada, that person may be placed in a situation where they will be exploited or abused.
Quite frankly, I believe this is absurd. As the government, it is our responsibility to ensure that people who come to Canada can pursue their lives without fear for their safety. This responsibility compels us to address this paradox in the current legislation.
Bill C-10 would allow us to do just that. Specifically, it would help protect vulnerable foreign workers from being subjected to potential abuse and exploitation by giving immigration officers — highly trained individuals who have delegated authority and who exercise it in an unfettered way — the authority to deny work permits to those applicants who may be at risk doing that kind of work in Canada.
We propose to change the current objective in IRPA, section 3(1)(h), from protecting "the health and safety of Canadians " to protecting "public health and safety. " We have proposed this change because we recognize that the Government of Canada has a responsibility to protect the health and safety of everyone who is in our country legally, not only Canadian citizens and permanent residents.
Consistent with this objective, we have proposed amendments to IRPA that would allow the Minister of Citizenship and Immigration to issue written instructions to immigration officers, giving them the authority to deny work permits to applicants who are vulnerable to abuse or exploitation. These instructions would be based on clear public policy objectives and would be supported by evidence that shows the risk of humiliating or degrading treatment.
The minister's instructions would not target specific work applicants directly. Rather, these instructions would apply to applicants of a particular occupation or a group of applicants who could be identified as vulnerable to abuse or exploitation. Instructions would potentially address not only high-risk work settings but also characteristics that would make foreign workers particularly vulnerable to abuse and exploitation, and I believe that female workers are more likely to face that kind of exploitation than men.
Right now, there is evidence that shows that some innocent foreign nationals are being brought into Canada on temporary work permits to work in the sex trade and are managed by organized crime. These women are then exploited through coerced activity in this deplorable trade. The ability to deny work permits to vulnerable workers would enable the government to better protect these applicants by keeping them out of these types of situations in Canada in the first place.
I want to assure the honourable senators that this legislation includes many checks and balances to ensure that the ministerial instructions are applied objectively.
First, immigration officers would need to apply the instructions on a case-by-case basis, and each application for a work permit would be assessed on its own merits.
Any decision to refuse a work permit would also need to be supported by evidence that shows the risk of humiliating or degrading treatment. In addition, any decision by an immigration officer to refuse a work permit in Canada would require the concurrence of a second immigration officer to ensure that the right decision was being made.
Should an individual be refused, it is also possible that they could be granted a work permit if they apply to come to Canada to work in another occupation or in a different situation that did not put them in the same risk.
Further written instructions would help define specifically who would be considered vulnerable. As I stated, this decision would depend on the situation or the context, not on the occupation. Generally, though, a person who may be subject to humiliating or degrading treatment, or who may be at risk of abuse or exploitation, would be considered a vulnerable person.
Our immigration officers are very skilled at recognizing applicants who might be at risk. Armed with an appropriate ministerial instruction and the evidence to support their decision, officers would be able to help ensure that exploitation does not occur under government authorization.
Without these amendments, my ministry has no discretionary authority to deny a work permit to someone who meets all of these requirements to enter Canada, even if immigration officers believe there is a strong possibility of exploitation and abuse. This is what I say is absurd. If a young woman applying for a work permit out of Kiev, in our mission in Ukraine, arrives and it is clear to the visa officer that she will be working in Canada ostensibly as an exotic dancer, and if there is circumstantial evidence surrounding the file that suggests that she will be managed by people of bad faith, to put it mildly, I think it is unconscionable for the law to require that visa officer to issue the permit even if they think there is a good likelihood that person will end up in a de facto human trafficking situation where she will be systemically abused and exploited.
Better oversight will go further to ensure that temporary foreign workers come to Canada to work in genuine jobs and will minimize the chance that they will be exploited or abused.
In closing, Mr. Chair, honourable senators, what Canadians want is an immigration system that treats people fairly and equally. They do not want an immigration system that can be used to exploit vulnerable people.
Today, I ask the honourable senators to help us move this legislation forward quickly so that these desperately needed measures can be put into place.
Perhaps I can say a final note about the inclusion of these provisions in this broader criminal justice bill. In fact, the government had introduced these provisions as a separate bill on two separate occasions in previous Parliaments. There was insufficient support in the House of Commons in both instances to advance the bill. That is why, together with other measures as part of an election platform commitment of the governing party, there was an undertaking to put forward these measures for accelerated passage early in the life of this new Parliament. That explains their inclusion in this bill.
Mr. Chair, I am happy to take any questions that senators may have.
The Chair: Thank you, Mr. Kenney, for those opening comments.
Colleagues, the minister will have to leave in roughly 50 minutes, and I know all of you are anxious to ask questions of him. Please keep that in mind with your questions. Keep them concise. The officials will be remaining after the minister leaves, and of course they are available as well for any questions that come up during this period.
Without further ado, I begin with the deputy chair, Senator Fraser.
Senator Fraser: Welcome to a little touch of winter between two cities that are not as wintery as Ottawa.
It is this business about the instructions. You have just said that they would not target specific work permit applicants directly; rather, they would apply to applicants of a particular occupation or a group of applicants.
Are you telling us there that, by instruction, you could ban work permits applying to whole groups of occupations? Let us take exotic dancers as a possible example.
Mr. Kenney: The minister's instructions could identify particular occupations that the minister believes represent an elevated risk for exploitation or abuse. The assessment would be made on an individual basis, based on each application for a work permit by an applicant. It is not to ban entire occupations but to identify occupations as factors to be considered on a case-by-case basis. Did I get that right, Mr. Manicom?
David Manicom, Director General, Immigration Branch, Citizenship and Immigration Canada: Yes.
Senator Fraser: No one here is in support of human trafficking. The objective is lovely. What we are looking at is the means of trying to get there.
What might we take to be characteristics that would make foreign workers particularly vulnerable, apart from being a woman, presumably a young woman?
Mr. Kenney: That would be the subject of the ministerial instructions. Essentially, public servants would draft, for the minister's consideration, a set of instructions that would be issued to our visa officers, which would constitute indices of what would elevate risk of abuse or exploitation of a temporary foreign worker in Canada. One of the indices would be certain occupational categories. I clearly foresee exotic dancers being on that list.
Another might be a concern that the employers might have links to organized crime. Do you have other ideas of possible indices, Mr. Manicom?
Mr. Manicom: Yes, it might include things like the youth or poverty background of the individual concerned. We could easily think of two relatively extreme examples, but you have a 30-year-old international headliner who travels and works in very high-end, if you will, institutions versus an 18-year-old Romanian from a very poor village destined to a club that we have evidence has been linked to organized crime. In the interview, what she has been told, how much money she has been told she will make, what fee she may have paid to those arranging her travel, would enable the visa officer to interpret the instructions in a way that would lead to a refusal.
Senator Fraser: Why would you be taking these positions via instructions rather than regulations?
Mr. Kenney: First, instructions are more flexible, so we can adjust them to fill gaps as they arise. The regulatory process now is time-consuming and rigid. It takes up to 18 months to adopt regulations. First, we do not want to wait 18 months to help prevent the exploitation of vulnerable women in particular. There is an industry out there both of crooked consultants and of agents overseas, in this particular industry, twinned up with organized criminal networks that will do whatever they can to exploit whatever barriers we erect. We want to be flexible. The ministerial authority instruction gives us the ability to do that. It gives the same effect; both of them are grounded by the law. Both of them are authorities by the minister. There is a robust legal framework around the ministerial instructions. They would be published and subject to commentary.
Senator Fraser: If we have time for a second round.
Senator Runciman: Thank you to the witnesses. Minister, we had a witness here yesterday who was suggesting that Canada should let people in and hope we can stamp out the exploitation here. To you or your officials, how easy is it to rescue people, even find them, when they have been brought here by human traffickers? What is the experience?
Mr. Kenney: I read some of that testimony and found it quite disturbing, to be honest with you. Obviously, vulnerable women are already too often trafficked into Canada. While our police services undoubtedly do their best to identify such cases of exploitation, clearly, women are put at risk. Our government has responded to the vulnerability of women in particular in these situations in 2006 and later in 2008, creating a public policy to allow for temporary resident permits that ensure status for I think up to 18 months, plus coverage under the Interim Federal Health Program for individuals in Canada who apparently have been trafficked into the country and are facing exploitation. In other words, if they need to get out of the situation, they go to the police or another authority and they say, "I am in a forced prostitution situation, and I am being exploited. " We have made it so that they will no longer be subject to removal from the country. They will have at least temporary status to sort things out and will have federal health coverage in the meantime. We have provided a legal bridge for women like that.
I encourage you to pick up a copy of some of the free publications out there, like NOW magazine in Toronto, the left-wing rag. Go to the back 20 pages and you will see dozens of advertisements advertising young Asian girls, they call them, in particular, who are available presumably for prostitution. I would ask the people who made that testimony last night, what about those girls? What about the vulnerable Romanian or Eastern European girl that ends up in a seedy strip club in Canada? Notwithstanding the best efforts of the police to interdict in this business, it still goes on. Our view is that this legislation is an additional tool to try to prevent the exploitation of women before they get to Canada.
Senator Runciman: Their view was quite the opposite and that we should solve the problem once they were here, which was perplexing, to say the least.
I think you talked briefly about some of the employment categories that are under review that especially impact women and get them into the sex trades. Can you tell us more about what is happening there currently with respect to especially vulnerable women? I think we heard testimony yesterday with respect to the exotic dancer category. Steps have already been taken there. Are there other areas prone to abuse?
Mr. Kenney: There are general concerns about some temporary foreign workers in various occupations being vulnerable. We often hear this concern expressed by some advocates with respect to the live-in caregiver program. I believe the vast majority of employers of live-in caregivers are good and honest, generous employers who respect their contract obligations and the best interests of the caregiver, but undoubtedly there are sometimes instances where women find themselves in that particular occupation facing exploitive employers, which is why, by the way, we have worked out information sharing agreements with the provinces. If they report to us an abusive employer of a live-in caregiver, we can then deny that person access to the program in the future. Here is an example of where these instructions might apply. If the visa officer looks at the context and believes that the applicant for caregiver status has been misled or maybe is being offered employment by an unscrupulous employer who has a bad track record, if they look up on the Internet to see this particular employer has a questionable background and the visa officer believes there is evidence that the caregiver might be exploited in that particular situation, then they could deny the work permit.
There are other occupations. This is not just about exotic dancers. In principle, the ministerial instructions could be applied to other occupations, but we would expect in most instances it would apply to applications seeking to come in under the occupational category of exotic dancer.
Senator Runciman: What has the experience been in terms of success in Canada in prosecuting persons who have been involved in human trafficking, especially including if they are non-citizens, and deporting them from Canada? What is the track record there?
Mr. Kenney: I do not have statistics at hand. I would say I am not aware of a large number of successful prosecutions in that regard. There is a high-profile one that came to light on the north shore of Vancouver recently, I believe, where a Canadian woman I believe of African origin had employed two caregivers in what they claimed was essentially a form of slavery, where there were allegations of physical abuse. Periodically, we get these allegations, not just allegations but criminal charges, but I think they are relatively few and far between.
Mr. Manicom: The data available shows a fairly small in number if you are looking explicitly at foreign nationals. The number of criminal convictions is quite small.
Senator Runciman: What about deportations subsequent to conviction?
Mr. Kenney: The law is that if a foreign national here as a permanent or temporary resident is convicted of a crime that would carry a sentence of 10 years or more, then they are subject to removal, typically at the end of their sentence. Anyone who is convicted of human trafficking would be subject to removal, but, again, I do not think we see a lot of convictions.
Senator Cowan: Minister, welcome. I wanted to get to the issue of ministerial instructions and regulations, but just on the exotic dancer issue, I had understood that very few exotic dancer applications, if that is the right term, have been granted in the last couple of years. Can you give me some sense of how many applications for permits would have been made in the last two years and how many were granted?
Mr. Kenney: Back in 2003, just to give you some context, 250 work permits were issued for exotic dancers at our overseas missions. Last year, it was eight, so the number has come down quite considerably in the last few years. I believe that is in part because our visa officers are perhaps more attentive or are more closely examining these applications and applying what we call the bona fides test, which is grounded in the Immigration and Refugee Protection Act. The eight could become zero and we could avoid it going back up to 250 with the kind of instructions we propose in the legislation.
Senator Cowan: Without these amendments, you have been able to move it down from 250 to 8. The likelihood of going back up in the current environment would seem to me to be unlikely.
I will get to my main point, because time is limited, and that is to pursue the question that Senator Fraser raised with you. There is a difference between ministerial instruction and regulations, and regulations are subject to scrutiny and have to be tabled in Parliament and have, I would have thought, a greater recognition in the law. You mentioned that this gives you greater flexibility, and it takes 18 months to get regulations. Is it not true that cabinet could simply decide on its regulations and they are then published in the Canada Gazette and they become effective? Is that not the situation?
Mr. Kenney: Unfortunately, the regulatory process is not that simple. It requires that all sorts of analyses be done and then prepublication for comments and then final publication, which on average takes between 12 and 18 months. Ministerial instructions are published. We do invite public comment on them. The minister is accountable to Parliament for the exercise of that authority, just as he is with regulatory authority. Quite frankly, I think it is a distinction without a big difference between regulations and ministerial instructions. We have been using ministerial instructions since we amended the Immigration and Refugee Protection Act in 2008 without any controversy.
Senator Cowan: Are they used apart from the Immigration and Refugee Protection Act?
Mr. Kenney: I am talking about in the context of. I do not know about other ministries or other statutes, but in IRPA, in 2008 Parliament gave the minister the power to issue instructions. We have done so quite effectively, for example, to limit the number of new applications coming in for federal skilled workers, substantially reducing that backlog. The point is that we have applied it in several instances. We have used that power since 2008 in several instances. I am not aware, frankly, of any controversy. I have been minister here for over three years, and I have never had one question in the house about it.
Senator Cowan: Your position would be that regulations and ministerial instructions have essentially the same effect and the same impact.
Mr. Kenney: Yes, except the ministerial instructions, we find, are faster moving and more flexible.
Senator Lang: I would like to move to another area. One always scrutinizes decisions such as this to ensure that whatever decisions are taken are fair and there is a second opinion that is perhaps given when you are making decisions of this kind because you are dealing with people, their lives and futures.
I understand a second visa officer's advice is required to make a recommendation binding in respect of whether an individual is allowed to come or not. Is that correct? Perhaps you could expand on that.
Mr. Kenney: Yes, as I mentioned, what we are proposing is that a visa officer would deny a work permit to an applicant only when there is evidence to cause the officer to believe that the applicant would face degrading or humiliating treatment in Canada. That negative decision would then be reviewed by a second visa officer to have a check and balance in place. Yes, there is a check and balance there.
Senator Jaffer: Thank you, minister, for being here and thank you for the comprehensive way in which you are looking at immigration, especially on the issue of fraudulent marriage. I again urge you to look at the issue of forced marriages as part of this package.
When we talk about trafficking, we often look at sexual exploitation but not at the exploitation of workers. The Human Rights Committee is planning to go to Ghana, where we will be looking at the abduction of young children to be forced into work. That is a good step.
Minister, I believe it was you who put in temporary residence permits for victims of trafficking. Will that still be in existence?
Mr. Kenney: Yes. As I mentioned, I believe the temporary resident permit was initially six months, and then we extended that to 18 months. That is an extraordinary instrument to allow a person who is facing falling out of status to stay in Canada during that period. We have also allowed them to qualify for the Interim Federal Health Program, so if they have been abused in the trafficking situation they could then get health care.
Senator Jaffer: I have no issue with what you said earlier about exotic dancers. That is not where I spend my time working. However, I work with live-in caregivers and agricultural migrant workers, especially in the Lower Mainland of B.C.
With clause 206 that you are setting out, you are also setting out our values. In the same way, you are setting out our values of how the live-in caregivers and how the migrant workers are to be treated.
Now I have a situation in the Lower Mainland where I am working with Mexican migrant workers who are being blacklisted because they are trying to organize a union. I believe you know about this issue. My concern is whether they will be able to get in because they have trouble.
Where I have difficulty is this: If I understand the process, the employer needs to apply under Human Resources Development for a labour market opinion to say that he cannot find a Canadian to do the job. That is where he applies and the labour market opinion says there is not a Canadian to do this work and the employer can go abroad to get the worker. In this bill, I would have liked more emphasis to say the employer will not get the permit if there are concerns that the employer will bring in an employee to traffic.
Why did you put the burden on the employee rather than the employer?
Mr. Kenney: Under the law, my ministry either admits or does not admit people into Canada. The employer is already in Canada. We cannot control that. We can control whether the person applying comes into the country, so we use the statutory authority that we have.
If I could say though, senator, we share your concern that other temporary foreign workers, as I indicated, may face vulnerable situations, which is why we changed the regulations. They came into effect last year. It was pre-published in 2010. Last year we brought in new regulations that allow my ministry to essentially blacklist employers who have been reported to us by the provincial governments as having abused the rights of temporary foreign workers.
Part of the complexity in our federation is that provincial governments oversee and regulate labour standards and employment conditions. We do not have the authority to do that. We have gone to the provinces through bilateral information sharing agreements and asked them to identify a bad employer of temporary foreign workers. We will then prevent that employer from having access to labour market opinions and work permits for at least a period of two years.
That has been put in place as an additional safeguard, but obviously, as it relates to human trafficking, if an employer were to be convicted of a human trafficking violation that would automatically add them to our blacklist so they would not have access to work permits. In a sense, we have done what you are asking us to do.
Senator Jaffer: I am glad to hear that.
I do not know how instructions work. This is new for me. May I ask you to look in the instructions and if a vulnerable woman comes to the top of the list, has the interview and then you have decided that she will be trafficked into Canada, can she then stay in the line rather than having to go back to the bottom of the line? She obviously needs to find another employer, but I am asking you to fast-track her when she comes up the second time.
Mr. Kenney: The short answer would be no, but it is not necessary because we are talking here about work permits in the Temporary Foreign Worker Program that move quite quickly. If that initial application were denied on these grounds, she could apply for a different and legitimate job that would be approved typically in a couple of months. Our average processing time for work permits overseas is six weeks. It is not like the Permanent Resident Program, where she would have to get in the back of a seven-year queue. She would have that considered within a couple of months.
Senator Jaffer: Is there an appeal process after the two officers have decided that this person will not be given a work permit?
Mr. Kenney: The second visa officer would review a negative decision on these ministerial instructions with respect to degrading treatment, so yes, there would be a review. In terms of appeal, any refusal on a temporary resident visa application, including a work permit appeal, is subject to an application for judicial review to the Federal Court.
Senator Angus: Minister, I want to be sure I understand correctly. These proposed amendments are not aimed at refugees. It is people in the normal course applying for entry into Canada, so it is not a case of people who are in extremis.
Mr. Kenney: No, not at all.
Senator Angus: I believe you said this yourself, but I want to make sure. The trigger for this was the exotic dancer category and the issues that came up when Minister Sgro was involved and there was a lot of publicity around it; is that correct? You have been able to reduce it to eight. How did that happen?
Mr. Kenney: Shall we say that since the current government took office, I and my predecessor ministers, Solberg and Finley, have encouraged officials to look closely at work permit applications in the exotic dancer category to ensure that they meet the statutory test of the bona fides. Our visa officers have exercised a rigorous review of these applications.
Senator Angus: That is notwithstanding what you referred to as the absurd paradox, where in effect the paperwork is right and the boxes have been ticked.
Mr. Kenney: I will be honest with you. The provisions in this bill would give us clear legal authority not to worry about having to be sued by sleazy strip club owners for having denied these permits. I think we need a stronger legal authority. Also, I mentioned the number of oversees permits issued, but there are also a number of renewals that happened within Canada.
To go back to the same years in comparison, in 2003, while 250 of these exotic dancer visas were issued overseas, 431 were renewed in Canada, for a total of 681; whereas last year, 8 were issued overseas and 85 renewed in Canada, for a total of 93. Those numbers are still not negligible. I would like it to be zero.
Senator Angus: You can do it under the present law, but it will make it much more efficient and clear.
Mr. Kenney: We cannot consider the occupational category under the present law. We have to look at other factors. Our officers have to exercise great discretion in that.
Senator Angus: Being from Quebec, I have to ask you this, minister. I understand there has been some delegation of the authority to Quebec in matters of immigration of this nature, or will this apply directly to permits for coming into Quebec?
Mr. Manicom: Quebec has authorities with regard to the issue of a certificat d'acceptation du Québec to approve the labour market opinion, but the actual issuance of the work permit abroad is a federal authority and would apply in this case.
Senator Angus: If they get that federal permit or the one who is not challenged in wherever it is, Budapest, they still have to have the Quebec acceptance certificate to get into Montreal?
Mr. Manicom: It comes first. It is roughly equivalent to HRSDC's role more than the CIC's role.
The Chair: I have a brief supplementary on an issue raised by Senator Angus, when he spoke of the role of the visa immigration officers. I noticed in your opening comment, minister, that you referred to these highly trained immigration officers. That stands in sharp contrast to something we heard yesterday from Professor Macklin, who, in her words, said that she felt those immigration officers were ill-equipped to perform the role that is indicated in this bill, the role they would undertake.
The suggestion seems to be that somewhere in the bureaucracy there was another group better suited to make these decisions. What is your comment on that?
Mr. Kenney: She is probably thinking that Queen's law professors would make the decisions.
I will refer that to Mr. Manicom because he can describe how our officers are trained. He is now the director general of policy. He most recently ran our largest visa operation in the world in India and has engaged in the training of dozens of visa officers.
Mr. Manicom: There are two primary elements. The first is the formal training in the act and regulations and then practice training at these offices before they go abroad working under mentors and senior managers.
Then there is the visa office specific element of the training. Depending on the visa office size, there will be varying degrees of formality. That is working closely to understand the socio-economic situation in the country at hand. It is continually receiving intelligence-related information on trafficking networks, various criminal enterprises, the evolution of socio-economic and political instability issues. Then there is the experience gained by reviewing hundreds of documents and interviewing hundreds of individuals over the course of their development.
Perhaps I might mention that my very first posting was in Moscow just as the Soviet Union was crumbling. We had a large number of applications from exotic dancers. The industry in Canada clearly saw a group of people vulnerable to exploitation. We interviewed them in bulk on special days. It was very sad work, but our only tool to refuse applications was whether or not the individual was likely to return. We had no tool like this one, the bona fides test. In some cases, again, we had relatively older professionals, if you will, who had worked in high-end supper clubs that we were less concerned about, and then we had 18 year-old country girls.
Senator Angus: They were likely to return where, back to Russia?
Mr. Kenney: The test applied under the immigration act by our visa officers under the authority I delegate to them is whether or not someone is, on the balance of probabilities, likely to leave Canada at the end of their period of authorized stay. They are trained to look at all sorts of factors, assets in the country of origin, family ties, employment, travel history, et cetera. Those are the factors. These numbers have gone down because our visa officers have been aggressively applying the bona fides tests to these particular applications, but, as I say, this is not a fail-safe solution to the problem.
Senator Baker: First, I would like to congratulate the minister on the great job he is doing on behalf of the Government of Canada — you will note I said on behalf of the Government of Canada — and also to congratulate him on the officials that he has with him here today, who are excellent officials. A moment ago, I saw one of the officials whisper in the minister's ear, and I imagine it was to correct the minister when the minister said that they have the right of appeal to the Federal Court of Canada. I imagine the official said that they have the right to seek leave to appeal.
Mr. Kenney: What I said was that they have a right to apply for judicial review, which is to seek leave. I said the right to apply for judicial review, which is what the right is. I am not sure what you were correcting me about.
Mr. Manicom: I would never correct you, minister.
Senator Baker: See how great those officials are, minister!
Mr. Kenney: They correct me all the time, Senator Baker.
Senator Baker: Perhaps Mr. Manicom could comment on this because I notice that over the years he has been quoted in judgments on behalf of the minister, and his decisions have been judged to be reasonable.
The standard of "in the officer's opinion, " I notice, Minister, you said a moment ago it was on a balance of probabilities; in other words, the officer will receive his or her instructions from the minister after the other regulations have been complied with and then the standard of judgment, Mr. Manicom, would be the reasonableness. Did he or she unreasonably fetter his or her discretion? Would that be the test?
Mr. Manicom: I defer to our counsel.
Nisrin Nasrallah, Counsel, Citizenship and Immigration Canada: I do not understand the question.
Senator Baker: If we are talking about an appeal or the right to seek leave to appeal to the Federal Court, under the Federal Courts Rules, the appeal to the court on the minister's decision — it is not the minister's decision, it is the officials' decision — the standard by which that decision would be judged, it would be a request by the appellant to overturn the minister's decision. In judging whether or not to overturn it, what would be the standard that would actually be put to the court? Is this, as I said before, the unfettered discretion?
Ms. Nasrallah: This is a very complex area of law, actually.
The Chair: Senator Baker, the officials will remain after the minister leaves. Would you rather wait for the response then?
Senator Baker: That is a good idea, so the minister can be subjected to questioning.
The Chair: Are you fine with that?
Senator Baker: Absolutely.
Senator Boisvenu: Welcome, minister.
I think that Canadians are very open to immigration, making Canada a very hospitable country, just like Quebec.
I think that Canadians are glad to see that you are reviewing the country's immigration strategy, especially as it pertains to individuals who enter the country under false pretences and those who, upon arrival in Canada, fall victim to exploitation or enter the world of organized crime.
Canadians are shocked to learn that those are two areas where the immigration system can have some holes.
So I want to commend you for the work you are doing. People are saying that it is time for Canada to tighten up its immigration system.
My question has to do with victims; you know what concerns me in that regard. I know that you work very closely with immigrant groups and that you are active in the Montreal area. How did you — or your colleagues at the department — consult with victims or victims' advocacy groups, and how did they respond to the objectives set out in the bill?
Mr. Kenney: I believe the current government first proposed these measures in a bill back in 2007. At the time, anti- human trafficking activists were consulted and they completely agreed with the measures proposed.
My colleague in the House of Commons, Joy Smith, who is leading the charge against human trafficking, organized roundtables with cultural community agencies, especially those that work with victims of human trafficking. All of those people supported these measures. They also supported the bill brought forward in the last Parliament; that piece of legislation sought to impose minimum sentences on anyone who trafficked persons under 18 years of age. Other measures are called for, but I have not heard from any anti-trafficking activists who oppose these efforts.
Senator Chaput: When we talk about humiliating or degrading treatment, the example that is given is sexual exploitation. What is the true definition of "humiliating " or "degrading "?
Mr. Kenney: The ministerial instructions pertaining to that provision of the legislation will be more comprehensive. Obviously, the act needs to have more general criteria, but the ministerial instructions will provide a bit more detail. Perhaps one of my colleagues would like to comment further on how we define humiliation.
Bradley Pascoe, Senior Policy Advisor, Temporary Resident Policy and Program, Citizenship and Immigration Canada: Certainly the bill is not meant to be exclusive to sexual exploitation. It could be humiliating and degrading treatment that goes beyond that. I think there is some language that that phrase mimics either elsewhere in the act or in some other act. There is some legislative basis for it. Some court decisions have expounded on that, and certainly in preparing any specific instructions we would look to those sources to ensure that the instructions are consistent with the case law.
Senator Chaput: However, at the present time that is all you can say? You have not really done that work yet?
Mr. Pascoe: No.
Senator Chaput: Thank you.
Senator Fraser: I was going to ask if we could have references to any jurisprudence, case law, whatever you have, using these phrases in other legislation, specifically addressing this "humiliating or degrading " question. I said yesterday they are words where the definition can be in the eye of the beholder. It would be nice to know what we are being asked to legislate. What you think is degrading I might not and vice versa.
Senator Dagenais: Thank you, minister, for taking the time to meet with us between two flights.
There is no doubt among the general public that we must not wait until people arrive here before we intervene and protect them, and in some cases, protect ourselves as well. Some people would probably not consider coming to Canada if their employers or other organizations did not dangle certain things in front of them. How can we, as a country, effectively combat the efforts of those involved in human trafficking and who make these enticing promises so that people are brought to Canada?
Mr. Kenney: Could you clarify the question please?
Senator Dagenais: Basically, what can we do to prevent organizations from making enticing promises so that people are brought here?
Mr. Kenney: I did not hear the translation, and I am not familiar with the French word miroiter.
Senator Dagenais: It means "entice. "
Mr. Kenney: That is a question for police. It is crucial that police officers carry out operations to combat human trafficking rings. It is well known that organized crime networks, such as the Hells Angels in Quebec, are often involved in this kind of trafficking.
As far as trafficking Canadians is concerned, gangs and bikers are often the ones who entice a young woman into prostitution, and then a few weeks or months later, they sell her to another group in another city. There is a form of human trafficking happening within our borders. All police operations aimed at combating organized crime rings address the human trafficking component. It is not my responsibility to investigate criminal networks. My goal with this bill is to prevent entry into Canada.
Our concern is that vulnerable women overseas are often brought to Canada by organized crime rings — the mafia in Eastern Europe, for instance — that have ties to certain business owners in Canada. Those business owners are often Hells Angels or other organized crime groups. We find the ties between the networks, and it is up to police and intelligence agencies to deal with those who profit from human trafficking.
Senator Frum: I will circle back to the beginning and just re-present Professor Macklin's criticisms, which you said you read, and you used the word "disturbing " testimony.
She specifically used the words "democratic deficit. " While she acknowledges this legislation is there to fight human trafficking, she thinks that the ministerial instructions trump the goal and that they represent this democratic deficit. You have addressed that, but do you want to address those specific words and that specific charge having to do with your accountability?
Mr. Kenney: Quite frankly, I think it is a completely spurious concern. It is elevating process over substance to an absurd degree.
The minister is given all sorts of authority under the statute, and the minister delegates that authority in turn to highly trained visa officers, and what we are proposing here is no different.
As I have demonstrated, we have managed to use our existing legal tools with very rigorous application to reduce the number of these visas being issued. However, I am coming to you seeking the approval of Parliament to do it in a clean, normal, authoritative legal way, so I would expect the professor to applaud us for doing that rather than searching for ways to deny these visas on other grounds. We are being transparent; we are trying to get a normal legal authority to deny these visas where we believe a woman will face exploitation, and I would hope that a law professor would be more concerned about the fate of these young women than some, I think, meaningless political argument.
There is no democratic deficit here. We are seeking an authority and statute approved by Parliament, the exercise of which I am accountable to Parliament for. If it turns out that our visa officers end up applying this power arbitrarily and unfairly, then I will be accountable to Parliament for that. That is very democratic.
The Chair: Just on that point, minister, we have heard from different witnesses, not necessarily to pick only on one, but certainly your comments and the process followed and the role played by the visa officers is at the centre; it is integral.
Mr. Kenney: I just do not know: Who else will make these decisions? Some kind of angelic intelligence, some disembodied — a computer is going to make these decisions?
Ultimately, human beings have to make these decisions on a case-by-case basis. I think we have one of the best immigration systems in the world, thanks in part to the high quality of the decision makers we have, who are highly trained visa officers. Quite frankly, on their behalf, I resent the suggestion that they are not competent to make decisions of this nature.
The Chair: What the basis of that is, I am not sure. Perhaps she was not aware of exactly what visa officers do. I am not sure of that.
In your opening comments you said that this refusal to grant a work permit would have to be supported by evidence. That obviously is significant.
The other aspect of it, as you point out, and if you want to comment on this I would be interested to hear it, is about the role of a second officer, so there does seem to be somewhat of a check and balance in the process.
Mr. Kenney: I will ask Mr. Manicom to respond to that, given his practical experience in the field.
Mr. Manicom: Yes, this is a practice that appears in several other cases in the law where, through the delegation instruments, normally a more senior officer, but in small offices sometimes an officer at the same level, is required to make a decision that is in some way somewhat exceptional. This is consistent with that.
The instructions, the text of which will be published in the Canada Gazette, would give to these officers the criteria to apply to their case-by-case analysis.
Other examples are such as when an applicant is refused for misrepresentation, for fraud, and incurs the additional penalty not simply of having their application refused but being inadmissible for two more years; it is considered a "wait here " decision, with greater consequences. That decision has to go to a more senior officer for their concurrence. That was a role I played daily at the visa office in Delhi, where we found a fraudulent document from time to time.
We have other examples of an individual under the points test, in the federal skilled worker selection system, where an officer believes that the points for specific reasons do not reflect the applicant's ability to establish in Canada — let us say they are a couple of points short, but their work experience is actually with IBM in New York and the visa officer feels that is an exceptional situation — a second officer can overcome the fact that they are two points short on the points grid. We have a few other instances where we provide for that kind of exceptional second-review decision making.
Senator Jaffer: Would the second officer do another interview, or would it be a paper review? The second officer would just give it to him in writing, or his impressions?
Mr. Manicom: Both the first decision and the second decision may or may not be taken with an interview. The interview is one tool available to the office to gather additional information. Normally a second interview would not be conducted, but if the second officer felt the first interview had not covered all the salient points and was uncomfortable exercising that senior authority, they could conduct an additional interview themselves. They would look at the case.
Some of them are what we call in the business slam dunks, and others are borderline and nuanced, and that second officer may feel comfortable conducting a further review.
Senator Fraser: I have been thinking about this, but I understand the minister is proud of his department and his staff and would not be bringing legislation to us if he did not think it was very good and necessary legislation.
I would just like to say for the record that I have actually read some of Professor Macklin's past writings over the years, and it is very clear to me that she is, and has been for some considerable time, very concerned about the plight of trafficked women and the complexity of all efforts required to help them. That does not mean I am asking you to agree with her opinion on the matter of instructions versus regulations. I just thought, since she is not here, I should say that just to get it on the record.
The Chair: Your comments will be noted, senator.
Minister, do you have time for one more question?
Mr. Kenney: Sure. Actually, if I could make a quick closing statement, that would be fine.
Senator Runciman: Mr. Chair, you covered that with the visa officer in training, so we can go to the closing statement.
The Chair: Minister, we would be delighted to hear your statement.
Mr. Kenney: It is not so much a statement as a point I wanted to make again about the need for flexibility. I mentioned how those who seek to exploit our system are flexible and ingenious. Our officers constantly have to keep an eye out for the new tactics being used to exploit Canada's immigration system.
My first visit as minister overseas was to Kiev, Ukraine, in November of 2008, which is part of a region that is often a source for trafficked women. I remember discussing this issue with our immigration program manager there, and he said that they had been making a more rigorous effort to apply the bona fides test to work permit applicants under the exotic dancer category. He found that people were using new tactics.
To give you an example of how ingenious they are, he said one day they sat down for a visa interview with applicants for a religious work permit to come to Canada. These two women were supposedly members of a Catholic religious order who showed up wearing habits. They were very young, had platinum blond, dyed hair, long, painted fingernails and had no knowledge of the Catholic faith. The visa officer suspected there might be some misrepresentation.
You will understand that in the world our visa officers operate in, everything is not always what it appears to be, and we need to give them the tools they require.
In closing, I also offer to table the statistics on work permits issued under this category for the past decade. I want to thank all honourable senators for your thoughtful questions and considered review of this legislation.
The Chair: Minister, thank you so much. We very much appreciate your time here. We realize between your schedule and your health it is a sacrifice, and we appreciate it.
We will continue with our consideration of this portion of Bill C-10. We have the officials still with us, and we are very pleased to have them here.
Senator Baker, I cut you off or cut the response off in mid-flight while the minister was here.
Do you understand the question?
Ms. Nasrallah: Yes, I understand the question. I started out by saying that it is a complex area of law, the standard of review that courts will use in examining decisions made by visa officers. It depends on the nature of the decision, whether it is a fact-based decision or whether they are interpreting law. Depending on the nature of the decision that is made by the official, the standard could range from reasonableness to correctness even. The court may even require that the decision be correct, with no room for a reasonableness interpretation. It depends on the finding made by the decision maker.
Senator Baker: Some of the concern of the previous witnesses here is that these would be secret instructions and would not be disclosed. I understand now, according to Mr. Manicom, that these instructions will be put in the Canada Gazette.
As a part of the consideration by the judge on an application for judicial review of the minister's decision, which is the officer's decision, then obviously the instructions given by the minister could be part of the application as to the reasonableness of the decision of discretion made by the officer; is that not correct?
Ms. Nasrallah: Yes. The judge could scrutinize the actual instructions themselves; they could scrutinize the factual findings of the department in issuing the instructions or in supporting the instructions; and they could scrutinize the evidence used by the visa officer in order to make a finding or an opinion that the issuance of the work permit was not justified. There are a number of decision-making points that could be scrutinized by the courts.
Senator Baker: One final question. In the proceeding before the judge in the Federal Court, I imagine it is the Attorney General who would represent the minister.
Ms. Nasrallah: Yes.
Senator Baker: It will be a counsel from the Department of Justice, from the Attorney General's department.
Ms. Nasrallah: Yes.
Senator Baker: Do you have any policy or any manual as to the behaviour of that Crown counsel as far as requesting costs at the end of such a proceeding, or does that come into the picture at all?
Ms. Nasrallah: It is very exceptional that counsel would request costs.
Senator Baker: Do you have any policy on that?
Ms. Nasrallah: Usually it is when it is a very vexatious application that is not grounded in any kind of fact or law. It is very unusual that we would request costs. The standing policy is that we would not request costs, from the DOJ's perspective.
Senator Baker: Normally, at the end of such a proceeding, costs are considered if requested by the Department of Justice lawyer. It does not necessarily have to be a frivolous and vexatious proceeding; it could be a long proceeding.
Ms. Nasrallah: No, it is unlikely that the Department of Justice would seek costs.
Senator Baker: It is not the intention of the department, then, to seek costs in these matters under appeal?
Ms. Nasrallah: No.
Senator Baker: That is good. Good for you.
The Chair: You are ending this evening on a very high note.
Senator Baker: Yes. No costs.
Senator Fraser: Two questions, if I may. First, when are we likely to see the instructions? I assume the drafting of them is well advanced.
Mr. Pascoe: Right now, the minister does not have any authority to issue any instructions. We have to pass the legislation first. Once that authority is in place, then instructions can be developed.
Senator Fraser: You mean you have not even begun to draft them? Really?
Mr. Pascoe: I do not want to presuppose the democratic process in this country. This legislation may not become law.
Senator Baker: Yes, that is right.
Mr. Manicom: Just to confirm, the actual drafting of the text of the instructions has not begun. The instructions will probably not be particularly lengthy, and the drafting of those instructions will begin after the law comes into force.
Senator Fraser: You have been thinking about what they might say?
Mr. Manicom: Yes. However, with respect, senator, our workload is extremely frenetic right now, and we work on issues based on current priorities. This will become a high priority once the bill is passed.
Mr. Pascoe: Just to add to that, I was not intending to be flippant. As Ms. Nasrallah made clear, the instructions need to have a strong evidentiary base and be sound in law, and that will require consultations with the RCMP, the Department of Justice, and others like that. We have so many other things on our plate that my bosses will not devote my time to doing that. It will be a full-time basis once I start it; let us put it that way. There is a lot to be done.
Senator Fraser: Speaking of which, my earlier request for legal grounding for humiliating and degrading, within 48 hours, please.
Mr. Pascoe: Okay. Unless my boss says no, I will do it.
Senator Fraser: My second question has to do with the very interesting statistics the minister provided for us about exotic dancer visas. If you try to pour two litres of water into a one-litre jug, there will be an overflow. Have you noticed or has there been any indication of a corresponding increase in applications for some other occupation where the young women in question might, in fact, once they got in, find themselves working as exotic dancers? You understand what I am trying to drive at here, sort of compensating?
Mr. Manicom: No, not to my knowledge, senator. The other sorts of occupations that we would want to keep our eye on do not normally get positive labour market opinions from HRSDC, but we could have incidents develop in the future.
Think of massage parlours, for example. The massage parlours that we would tend to be concerned about do not necessarily employ highly trained physiotherapists, but we could have instances where we find out that what appears to be a very credible spa, which is bringing in apparently registered physiotherapists, is actually a front for other activities. That is the sort of situation where the ministerial instructions could come into play. Elements of the film industry that perhaps on the surface are not elements of the so-called adult film industry and appear to be other elements of the film industry, but information is obtained that degrading or sexual exploitation is happening, again, those are the sorts of situations that, to my knowledge, we have not seen a lot of. However, we would be able to adapt, and the minister might feel at some point, because of shifting circumstances, that he wished to modify the ministerial instructions and have them republished in the Canada Gazette because the issues at play have perhaps changed as the industry adjusts. Even, conceivably, a sub-element of the construction sector — there are a number of identified firms that are problematic from a degrading treatment point of view. I do not want to try to imagine what that might be.
An important distinction to make is that of course we can find an applicant inadmissible if they are going to commit criminal activity or we have reasonable grounds to believe they will, but not if they are subject to criminal activity, because we are examining the applicant. This is where this ministerial instruction would give that sort of outward- looking authority.
Senator Fraser: I would be willing to bet that there has been overflow into at least some sectors, but nothing so concentrated or focused that you have seen?
Mr. Manicom: Not that we have noticed. Just to add, for your information: At various times in the past, a large percentage — and I am afraid I do not know the current situation — of non-Canadians working in the sector do go back and forth across the border from the United States. Perhaps somewhat less vulnerable, but they themselves may be immigrants to the United States and there may be vulnerabilities. The high-profile situations in recent years have tended to be out of Eastern Europe.
Senator Jaffer: When you were talking about the degrading situation, B.C. has very much been in the talk on this bill.
I come from B.C., where we had a degrading situation regarding the Africans working in Northern B.C. We will not talk about them personally, but, in a situation like that, would people who come on temporary work permits to a situation like that be able to apply while they are within the country to work in another place, or would they have to leave the country?
Mr. Manicom: That is a bit of a complex question. If they are found to be victims of trafficking, we have some provisions for that.
Senator Jaffer: No, not victims of trafficking. You know the B.C. situation about the degrading conditions. Obviously, I do not want to talk about that case but about degrading conditions. Would they have to apply for the work permit outside of Canada or would they have to apply within?
Mr. Manicom: Mr. Pascoe will correct me if I am wrong, but, generally speaking, if another employer makes them a job offer and a labour market opinion is approved by HRSDC, they can apply for a new work permit, I believe, without exiting the country.
Mr. Pascoe: So long as the permit is of valid duration and the application is received before that validity period expires, they can simply mail in an application to our processing centre.
Senator Jaffer: The minister covered clause 205 on page 101. He talked about public health — I get that — and safety. There is also another dimension of security in Canadian society. I have a rough idea what that means, but is this mentioned anywhere else?
Mr. Pascoe: This is just a small change to the language that was previously in that section because the previous language spoke of the health and safety of Canadians. As the minister said in his remarks, that would theoretically, then, say that the government has no responsibility to protect the health and safety of persons who are not Canadians, even if they are in the country legally. By changing the wording in this way, it imposes an obligation or a responsibility on the government to act and to protect the health and safety of anyone who is in the country with legal status, be they Canadian citizens, permanent residents or temporary residents.
Senator Jaffer: You may not have these answers, but I would appreciate it if you could send them to us. How many instructions has the minister issued so far — not on this bill but generally? If there are hundreds, I do not want hundreds, but could we have copies of them, please?
The Chair: You will agree to provide that?
Mr. Manicom: Yes, we can provide that. The number is not particularly large.
Senator Jaffer: Thank you.
Do you have any data available that would indicate how many foreign workers entering Canada are considered vulnerable and in need of protection? You must have had something to act on this bill. What data do you have that caused you to bring this bill into place?
Mr. Pascoe: As we heard from, I think, pretty well all of the witnesses yesterday, there really is virtually no solid data because of the nature of this activity. There are no numbers where we can say that we have done a comprehensive count and this is what it turns out to be.
There was a relatively comprehensive report on human trafficking produced by the RCMP last year. Again, if you read it, it will say, "We know of this case. We have anecdotal evidence, but we cannot quantify it. " I think partly it is probably, as Professor Perrin said yesterday, because so much of the activity is underground that it is difficult to find it. They are avoiding being counted. They are avoiding letting our law enforcement officials be aware of them.
Senator Jaffer: I do not want to put words in your mouth. Would you say that you have anecdotal evidence but not real data on how many people are vulnerable?
Mr. Manicom: The term "anecdotal evidence " tends to be used as a critique because it is not statistical.
Senator Jaffer: You can use another word.
Mr. Manicom: Technically, it is the correct term. If we mean reports by the RCMP, testimony by Canadian chiefs of police where they characterize the problem and use words like "a lot " and "common " and things like that, it is not statistical. However, it is not anecdotal in the same way as press clippings or things like that; it is sophisticated anecdotal evidence, if you will, or expert testimony.
Senator Jaffer: You were talking about massage parlors. In Vancouver, we had this situation of going to a massage parlor and thinking that women there were being trafficked. However, these women had permanent residency permits.
In this whole scheme of things, this is a step in the right direction to protect women, but we need to do more comprehensive work. It cannot just be work permits. It needs to be permanent residence. In that case, all the women from Korea did have permanent residency. This bill is just for work permits, nothing else — not permanent residents or anyone else, right?
Mr. Manicom: Yes, that is the ambit of this initiative. It is obviously a broader societal question. The tool at hand is the immigration act.
Senator Jaffer: Press releases have come out, and you spoke about work permits to exotic dancers, to foreign strippers and to low-skilled labourers as potential victims of human trafficking. I am concerned about the low-skilled workers. Do you have any data to show that low-skilled workers are being trafficked once they come here?
Mr. Manicom: Again, we do not have data in general, so, no, we do not have data for that subset. Generally speaking, low-skilled workers will have lower levels of education, language skills, and so forth. Therefore, if you have an exploitive employer, they are more likely to have difficulty defending their rights than IT professionals coming to work for IBM. Generally speaking, one has reason to have concern that scrutiny and oversight be applied.
The Chair: I have one final short question. We have had a lot of discussion around the appropriateness of the use of ministerial instructions. Of course, they reflect the public policy considerations behind the act.
It was suggested in previous testimony — not here today — that the use of ministerial instructions may not be valid at law. At least, that is what I took from the comment. We have heard from the minister and from yourselves as to why you believe, practically speaking, that ministerial instructions are appropriate. I just want to be clear that, legally speaking, we should have no reservation about the use of those ministerial instructions in this context. Can you provide us that assurance?
Ms. Nasrallah: Yes. From a legal perspective, I can assure you, Mr. Chair, that certainly ministerial instructions have existed in the past. This is not the first time we have used them in the Immigration and Refugee Protection Act. I am certain that our legislative drafters in the Department of Justice would not have approved their use in the past or in this case if we did not feel that they had a legal basis, which is parliamentary sovereignty. As long as an act respects the Charter, the division of power and constitutional principles, then Parliament is free to enact this kind of subordinate legislation.
The Chair: Thank you. That is reassuring and comforting. We appreciate that.
Mr. Manicom: To make sure everyone is aware of the historical context, ministerial instructions were written into IRPA in 2001. At the time, they were built into the structure of IRPA and passed by government at that time, the time of a different government.
The Chair: That was 11 years ago.
Colleagues, thank you. That concludes not only this panel but also our discussions today.
Thank you so much. What you have contributed here is very valuable to us. Colleagues, we will reconvene tomorrow morning in this room at nine o'clock. Thank you, once again.
(The committee adjourned.)